RACE RELATIONS BILL

HL Deb 04 October 1976 vol 374 cc967-1055

10.13 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, that the House do again resolve itself into Committee.—(Lord Harris of Greenwich.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 43 [Establishment and duties of Commission.]:

Baroness VICKERS moved Amendment No. 58:

Page 26, line 30, after ("Commission") insert ("established by section 25 of the Race Relations Act 1968").

The noble Baroness said: I understand that this is consequential to Amendment No. 51. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Clause 43, as amended, shall stand part of the Bill?

Lord SANDFORD

Before we leave this clause I should like to raise rather a different point. For far the greater part of the first three days of our debate in this Committee we were working hard to improve the Bill in the four ways described by my noble and learned friend Lord Hailsham. He described it as removing the unintelligible, the unenforceable and the oppressive and making it conform better to the proper principles of the law of the land.

I should like to take this opportunity before we leave Part VII—which has been concerned with the proposed new Commission, the main administrative innovation in the Bill—to invite the Committee to turn their attention to one further sphere and, in doing so to follow the thoughts which we heard expressed last Thursday by the noble Lord, Lord Houghton of Sowerby. He warned us of the danger of allowing the Government's zeal for more and more legislation to get us into the position where the scope and demands of the law move too far ahead of the attitudes, understanding and wishes of the public at large. I think the Committee accepted the force of the argument. I would add that we must also be aware of letting the legislation get out of line with the overall strategy for dealing with urban and racial disadvantage, and also of getting beyond the capacity of our administrative arrangements and our resources for giving effect to policy.

I believe Part VII is the point where we should ask Her Majesty's Government how we stand on these matters. The Government are, of course, fully committed to developing a strategy, or what the noble Lord, Lord Wells-Pestell, described as the overall philosophy on racial disadvantage. The White Paper of September 1975—that is over a year ago now—is peppered with commitments in this direction. There is talk of a comprehensive strategy, longer-term policies (that is paragraph 26) which ought not to be delayed. Paragraph 22 refers to the need for a coherent and long-term strategy.

At paragraph 14 it is even more explicit. I will quote it. It is a short paragraph: The review of race relations undertaken in the past year"— that is before September 1975— has convinced the Government that if urgent action is necessary, it is even more necessary to devise policies which are coherent rather than spectacular, to set targets which are relevant and realisable rather than dramatic. The gravity of the prospect demands action, but it places a premium on carefully considered action, consistently carried through. Nothing at this juncture could be worse than bold promises without the means of implementation". A year later, with the Bill more than half way through Parliament, that seems to be still all we have achieved; just problems without any account of the strategy that constitutes the means of implementation. It is true, on the other hand, that we in this House have what the other place did not have, and that is the response of the Government to the Select Committee's report on the organisation of the administration of race relations. I shall want to raise a point on that in the next clause.

I think the Committee needs to ask what progress has there been in developing this comprehensive strategy of which the White Paper speaks. We do not know. I am not aware of any document which has been published or any guidelines that have been established. Without some response to these questions, we find ourselves being asked to approve the creation of a new agency (an agency of which many of us think is bad in itself) without any idea of the philosophy, the broad overall outlook, the strategy, within which the agency is to work. We do not know about the resources that it will have at its disposal. We do not know the lines it will pursue and the priorities by which it tackles its varied tasks. I hope that the Minister will be able to give us an answer of some substance to these points, preferably now. If not, there will be another opportunity to do so on Amendments Nos. 63 and 64, standing in the name of my noble friend Lord O'Hagan, or we might have an undertaking that the noble Lord will be able to do so at the next stage of the Bill.

Lord AVEBURY

Before the noble Lord the Minister replies, may I draw his attention to the fact that I have two Amendments, or sub-Amendments, incorporated in Amendment No. 82E, on which I think it might be more appropriate to discuss the future of Section 11 of the 1967 Local Government Act and of the Local Government Grants (Social Needs) Act 1969, both of which are extremely important subjects but are not within the remit of the Commission. I think we ought to have the kind of discussion to which the noble Lord, Lord Sandford, has referred, but I wonder whether this is the most appropriate stage of the Bill on which it should take place.

Lord WELLS-PESTELL

I was going to make much the same point as the noble Lord, Lord Avebury, has made. The Bill sets out what the Government wish to do and how they see the problem facing the country at the moment. The noble Lord, Lord Sandford, has made a point about the Government's broad strategy. I think I have to be quite honest and admit that I cannot answer because at this stage the Government are not clear about what the broad strategy will be, and are certainly not in a position to make any statement about it. What we are concerned about is what is in the Bill and what is acceptable to Parliament in the Bill. I know this is unsatisfactory from the point of view of the noble Lord, Lord Sandford, but at this stage I am bound to say that I am unable, on behalf of the Government, to say what the broad strategy is.

Lord SANDFORD

If I may say so, I think that is extremely unsatisfactory. I said in my original remarks that it would be acceptable, though not desirable, that we should not have a response immediately. Is the noble Lord now saying that in spite of a commitment in the White Paper and the recognition that there must be a strategy, he is not in a position to make a statement at any stage during the passage of this Bill through either House of Parliament?

Lord WELLS-PESTELL

No, I am not saying that. I am saying that at this stage I cannot give it, but in the light of what the noble Lord, Lord Sandford, has said, I will consult with my colleagues in the Government to see whether somebody can make a statement on it at Third Reading.

Lord SANDFORD

I suppose we must be grateful for small mercies, and as there is a long night ahead of us we must leave it there.

Clause 43 agreed to.

Clause 44 [Assistance to organizations]:

10.24 p.m.

Lord DE CLIFFORD moved Amendment No. 60B:

Page 26, line 32, after ("assistance") insert ("not exceeding £100 in any one year").

The noble Lord said: In moving this Amendment, I find myself in some difficulty. The whole of the Bill, which I do not consider to be a very good one, has got to he sold, and it has got to be sold to the public. In both Houses of Parliament, I think we tend to forget that it is people in the community who have to be convinced that what we have done is right and that what is being done is done for the benefit of the community.

When one looks at this clause one finds oneself in the situation of realising that we have given or are giving to the Commission almost unlimited and uncontrolled power to donate what money they like where they like. While I am sure that the intent in this clause is admirable, there is practically no organisation in the country which could not be said to be concerned with, … equality of opportunity, and good relations, between persons of different racial groups. That term could be applied to a number of people. I suppose that one could start off with the Communist Party. I suggest that you might try the National Union of Students. You could probably try the Liberal Party as a very good organisation to promote good relations between people of different groups.

This clause will depend upon the administration, and at the moment we have no control whatsoever over the administration, nor can I see any control given in the Bill. This brings me to my second Amendment, No. 62A, because we must convince the public that any money which this Commission donates to these organisations is properly accounted for. People must have confidence in the operation of this Commission, and one of the ways of doing that is to show, and have exposed annually, the way in which the money donated is being accounted for. I beg to move.

Lord O'HAGAN

In order to save time, I speak now rather than on the Question, that the Clause stand part. I share the concern of my noble friend about this clause although, knowing the views of my honourable friend Mr. David Lane, who I understand is to be the chief of the Commission for Racial Equality, I am, at least for the foreseeable future, comforted by the thought that with his restraining hand the fears that have been advanced may not prove to be fully realised. However, whoever may happen to be in charge of the Commission for Racial Equality at the moment, he will have successes in due course and it is our job to see at this stage exactly what the Government intend that this clause should do. I understand that in another place it was Mr. Lane who introduced the concept of equality during the Committee stage, and in order to reassure both me and my noble friend, as well as the other Members of the Committee, it might be helpful if the Government could give some idea of the kind of limits that would be set on projects to be financed under this clause.

I noticed that on Page 13 of the journal of the Community Relations Commission for July 1976, it was noted, … that this Amendment"— and this was the Amendment which is now embodied in subsection (1) of Clause 44— effectively means that the only limit on assistance which may be given by the Commission is that of its available funds. I am not sure whether it does mean that. As I read it, it does not. But in view of anxieties that have been expressed in this Committee and elsewhere, it would be helpful if the Government could say how they see this clause being used, and what kinds of controls they see on the money when it is expended.

Lord RITCHIE-CALDER

This is an area where we ought to consider not just what are the limitations which have been suggested but what are the opportunities which are implicit in Clause 45, and I should like my noble friend to give me some reassurance.

It seems to me that this is one of the critical clauses of the Bill. One thing which is manifestly plain is that this is a Bill of deterrents; it is not trying to do what many of us feel, in a different sense, is its job: making a positive impact on the attitudes of mind of the people of this country. It was one of the National Front people who, paraphrasing to some extent Clem Attlee, said that wars occur in the minds of men and that the attitudes of mind towards immigrants exist in man himself.

Speaking as one of the first members of the Community Relations Commission, for years we have done an adequate job and, in some ways, a successful job in helping, through local authorities and otherwise, to teach immigrants how they ought to behave towards us. What is important in this clause in terms of research and education is what they can teach us in relation to our attitude towards them. This seems to me to be completely inadequate. For years—and I say this with some recrimination—some of us have been conducting a dialogue with the deaf and have been trying to persuade the Department of Education that this is critical to the nature of our education in order to produce a solid community in this country. We want there to be education in multiracial understanding. This does not just mean making immigrants conform, although I hope they have benefited from the fact that they have become part of our community, but making "us" realise what are our responsibilities, attitudes and final fulfilment in terms of "them". This seems to me to be absolutely fundamental.

I depart from previous speakers in asking how far the Commission themselves will have the facilities to endow or support the kind of research which is still desperately needed and the kind of education that we have to promote. Also I want to know whether the reference to the Secretary of State in Clause 44 is confined to the Secretary of State for Home Affairs or whether it will include the Secretary of State for Education. It is not merely a question of how much money we want to direct towards the propaganda for understanding; it is a question of getting it consistently into our educational system so that the new generation will understand that we are a multiracial society. I hate using the word "multiracial", although I am not apologising for using it. I am apologising, however, for having to accept the fact that we have to have racial concepts in order to assist us. We are a community, not a multiracial society.

I think that we deserve an assurance from my noble friend on the Front Bench regarding something which I insist might have averted over the years the kind of situation we still have, in which the National Front can continue to foment racial hatred. The oncoming generation should understand how completely we are culturally integrated with those who are coming into our midst and with those, not only in this country but in the world at large, we have to learn about and come to understand.

10.35 p.m.

Lord AVEBURY

I wish to say one word on the question of the resources which are to be available through the new Commission for the purposes mentioned in Clause 44, and indeed those which the noble Lord has just mentioned in relation to Clause 45, which are of vital importance. We read in the evening papers that Mr. Powell has made yet another of his speeches in which he suggested that people should repeat over and over to themselves the simple sentence, "You have seen nothing yet". That may be true so far as members of the younger generation are concerned, but some of us are old enough to remember that it cost us six years and many millions of lives to defeat racism, and therefore any resources which we make available to the Commission for Racial Equality may be of vital importance in stopping Nazism and Fascism from taking over in this country.

Lord WELLS-PESTELL

Perhaps I may begin by dealing first with the Amendment which the noble Lord, Lord de Clifford, moved on behalf of the noble Lord, Lord Clifford of Chudleigh. I should like to—

Lord DE CLIFFORD

I am not moving it on behalf of the noble Lord, Lord Clifford of Chudleigh; I am moving it on my own behalf.

Lord WELLS-PESTELL

As the Amendment stood in the name of the noble Lord, Lord Clifford of Chudleigh—

Lord HAILSHAM of SAINT MARY-LEBONE

I think the noble Lord must be addressing himself to the wrong Amendment. As I understand it, we are dealing with Amendment No. 60B which stands in the name of the noble Lord, Lord de Clifford, and not in the name of Lord Clifford of Chudleigh.

Lord WELLS-PESTELL

I am so sorry; I became confused on that. It is perfectly clear in front of me and it says Lord de Clifford. If I may deal with that first, as I understand the situation, the noble Lord, Lord de Clifford, seeks in this Amendment to limit the assistance to an organisation which the Commission may give under Clause 44 to £100 per annum. The effect, as I am sure the noble Lord, Lord de Clifford, realises, would be to cut off support for many worthwhile organisations which are assisted by the Community Relations Commission under Section 25 of the 1968 Act and which the new Commission will be able to help under Clause 44.

The main organisations supported at present are the local community relations councils, and the grants made to them, as the noble Lord, Lord de Clifford, I am sure appreciates, are considerably more than the £100 which he suggests. The Government made it clear that they are convinced of the valuable role which the local councils play. In the Government's view there is no substitute for the constructive work at local level. How it should be organised is, I recognise, an important issue, but I think we have to face the fact that the Commission for Racial Equality can only function through local councils, of whom there are 85 at the present moment, employing in the region of 150 community relations organisers.

If the Commission is to meet with any measure of success it can do so only if it has effective and efficient local community relations councils. If they are going to carry out their responsibility under the Bill they must have the finance to do it. It is perfectly clear in Clauses 43, 44 and 45 what the responsibility of the Commission is and how it is going to discharge that responsibility and in which field it is going to develop the work. It is not only a law enforcement body but also a body which must concern itself with the social implications of the Bill.

In 1975–76 the salaries alone of the 150 community relations officers amounted to £566,000. It also provided £31,000 for supplementary grants and another £74,000 for special projects undertaken by the community relations councils. There were other bodies outside the community relations councils which undertook special projects for the various minority groups at a cost of something like £36,000, and there were other self-help projects undertaken by the minority groups themselves amounting to £174,000.

If we want the Bill to work, then obviously the Commission has a responsibility, but all the responsibility of the Commission cannot be undertaken without the help of what one might call a number of subsidiary bodies, and I am referring to the community relations councils. It is their job to provide what the minority groups want. It might be education, and it will be up to the councils to see that the local education authorities provide what is needed in the educational field. There are various other projects, self-help projects, which all cost money. We envisage that the Commission for Racial Equality will need an initial sum of around £3 million, not only to cover its own administrative expenses, whatever is paid by way of salaries for staff and other personnel; it will need a very substantial amount to enable the 85 community relations councils which will continue under its aegis and under its control to carry on the work. Take that away, and then very, very little in this Bill can be accomplished in fact.

I am not unmindful of the fact that there is criticism of some of the community relations councils, but we have to realise that in the main they are voluntary bodies. We all know from practical experience and past experience that many voluntary organisations offer a very efficient, competent and expert service, and others are not so good. That is part of the price we have paid, I was going to say since time immemorial, by having voluntary organisations doing a great deal of social work in our community.

I hope that the noble Lord, Lord de Clifford, will not persist in his Amendment because let me say quite frankly that it is an Amendment which, if passed, would wreck the Bill in a very substantial way. I am sure—at least, I hope I am right in saying—that this is not the intention of the noble Lord. We have no reason to believe that the money that has been spent under the Race Relations Act has been wasted to any marked degree. In the eight years, a tremendous amount of valuable work has been done, and we believe that the Commission for Racial Equality will be able to exercise a good deal more supervision and influence over the community relations councils in the future than perhaps has been possible under the Race Relations Act 1968.

In addition, there are the local authorities which are making a very substantial grant to community relations councils, almost matching what has been paid out at the present moment. Here you have got the local authorities supervising the work being done by community relations councils, and under this Bill there will be a Commission for Racial Equality which will also initiate work. It will initiate schemes and projects which it will finance. It is perfectly true that, under Clause 44(1), it can only finance these particular schemes with the approval of the Secretary of State, which in this case, I understand, is the Home Secretary, and also the Treasury.

This does not mean that in the future it may be necessary for every grant to be first of all approved by the Home Secretary or by the Treasury. In the early stages this will be essential, but one assumes that the Commission for Racial Equality will come to an arrangement with the Secretary of State for Home Affairs and the Treasury that certain types of projects and work can be financed. One has to bear in mind that all these community relations councils issue an annual report. The Commission is under an obligation to do so. I would have thought that all the safeguards one could possibly put in at this stage are in the Bill.

Lord SANDFORD

Before my noble friend decides what to do in the light of that, may I say that I think the Committee will have been fascinated with that very interesting, and it seemed to me extemporary, explanation of how matters are going to work out between this new Commission and the people working at local level. I congratulate my noble friend on having extracted this from the Government. It has not been set before us before. Only last month, September, we had a Statement which the Commons certainly did not have, about the organisation of race relations and there was nothing in it corresponding in detail and comprehensiveness to what we have just heard. There we were told that consultations would still be necessary, which is what we were told in the White Paper. It is extremely helpful to have this insight as to how things are going to work out locally. It would be helpful if before the end of the passage of the Bill through this House we were to have a formal statement on administration of race relations at local level. I shall read with great interest the day after tomorrow what the noble Lord has just said, but valuable as it was we may still want something a little more authoritative and not quite so much off the cuff.

Lord NORTHFIELD

Before my noble friend replies to that point, could I ask whether he intends to deal with the point raised by Lord Ritchie-Calder at this stage or on Clause 45?

Lord WELLS-PESTELL

If I can recall what my noble friend said, the Secretary of State in the Bill covers all sections, but it will for the most part be the Home Secretary. Where research and promotional work are concerned the Commission will work closely with the Departments, such as the Department of Education and Science. How the Commission divides its resources between its different functions must in the first instance be for the Commission to determine. No doubt it will want to undertake research on the lines suggested, but the noble Lord will appreciate that this still needs a certain amount of attention. I do not know whether he finds that a satisfactory answer?

Lord RITCHIE-CALDER

I am afraid I do not. I do not think the noble Lord recognised my voice because it was coming from the Bishops' Benches, and I apologise as a chairman of the British Humanists. I was trying to make a very important point, which was the fact that this is much bigger than any definition you can put this kind of money value on because it does and must embrace the penetration of education at the national and at the local level, which has come up again under Clause 71. It is important because I happen to think that the new Race Relations Commission will understand what I am talking about even if my Front Bench has not quite grasped it, because this is something which is fundamental. We are trying to say that this is not just a question of how we educate—and I repeat—"them"; we are asking you to educate "us". This has to be done in all areas of education.

Lord DE CLIFFORD

I must thank the noble Lord, Lord Wells-Pestell, for his most courteous and illuminating reply, which I think must cause a lot of us to think, and with my noble friend Lord Sandford, I shall be most interested to read it. It would have been helpful if we had Lord Brockway's Amendment already in the clause, because this is precisely what he has told us the intention of the clause is. It is not in any circumstances for me to discourage anything which the Commission can do to help the community councils because, as I think I have said already, it is only down on the community council level actually with the people where harmony will be produced. You can also get disharmony, but you are far more likely to get harmony produced at that level than anywhere else. I should like to read with interest what the noble Lord said, but meanwhile I will withdraw my Amendment.

Amendment, by leave, withdrawn.

10.53 p.m.

Lord BROCKWAY moved Amendment No. 60A:

Page 26, line 32, after ("organisation") insert ("including local community relations bodies").

The noble Lord said: I wish to move Amendment No. 60A which would secure that in the Commission for Racial Equality there were representatives of the local community relations bodies. My case has been made much easier by the speech to which we have just listened from my noble friend Lord Wells-Pestell. I had considerable sympathy with the Amendment moved by the noble Baroness, Lady Seear, in which she had sought to remove this sphere from the Commission, but I agreed with the noble and learned Lord, Lord Hailsham, that it is impossible at this late hour to change the whole structure of this Bill. But in view of those circumstances, it seems to me enormously important that we should urge representation on the Commission of the local community councils. These councils are the instruments for racial harmony in the country. I learnt to recognise that at Slough. I was defeated by 11 votes on this issue. Following that the community council was established, with representatives of all the parties, with all the churches, with other active local organisations and with representatives of each community who established their organisations. I cannot describe the difference in climate which was created in Slough by the activities of that community council.

I have a slightly different figure from that given by the Minister as to the number of these councils in the country; he said there were 85 whereas the latest information I have is 89. Of these, 71 have full-time community relations officers. They are being most effective in securing the co-operation of the ethnic minority groups, which is absolutely essential if this new legislation is to operate. Their representation has increased from 11 per cent. in 1967 to over 48 per cent. representing the ethnic minority groups now. I hope that the new Commission will so appreciate the value of these councils that they will, under their auspices, establish an elected representative body to act as advisor to the Commission.

I hope that under the amalgamation of the Race Relations Board and the Community Relations Commission a greater proportion of the revenue will go to the local community councils. In 1974–5 the expenditure of the Commission was £1,296,278, of which about one half went on the payment of salaries and only £109,461, only 14 per cent. on community projects. The one case for the association of these two bodies is the hope that under the united body a greater proportion will go on actual community projects.

Lord WELLS-PESTELL

I hope that my noble friend Lord Brockway will not feel that his Amendment does not merit serious consideration if I deal with it briefly because I think that when I have said what the Government thinking is about this subject he will see why we are unable to accept it. We are at one with him on Clause 43, having already demonstrated our feelings about it in seeking to give the new Commission power to assist community relations bodies. Clause 44 follows the 1968 Act in principle in giving the Commission general powers of assistance. The only difference is the wording. Under Section 25 of the 1968 Act power is given to the Community Relations Commission to give assistance to community relations bodies. "Community relations" is denned for the purposes of that Act as: … relations within the community between people of different colour, race or ethnic or national origins. Instead of using the words, "community relations" in this sense, Clause 44 follows the language of the Bill in empowering the new Commission to assist organisations concerned with the promotion of equality of opportunity and good relations between persons of different racial groups". It thus covers community relations bodies as meant in the 1968 Act. I hope, therefore, that my noble friend will agree that his Amendment is not necessary. I think the provision is in the Bill, but it is worded rather differently from the 1968 Act.

Lord BROCKWAY

I am a little astonished by the speech which the Minister has delivered. It has not at all faced up to the Amendment which I proposed. The Amendment that I proposed is not concerned with the activity of the Commission in relation to the local community councils but is related to the actual representation of those councils on the Commission, and the point that I was trying to make—

Lord O'HAGAN

I may have misunderstood the noble Lord, but surely his Amendment amends Clause 44 and that clause deals only with assistance to organisations outside the Community Relations Commission, which is now to be re-entitled the Commission for Racial Equality. Surely it deals only with groups outside the Commission and not with the internal structure of the Commission itself, or have I misunderstood the clause?

Lord BROCKWAY

I am very sorry indeed if I have made a technical mistake. My object was to include representation of the community councils on the Commission. If 1 have made a technical mistake in drafting the Amendment, I am sorry, but I ask the Minister whether he will face up to the point which I made in moving the Amendment—a point which he seemed to me, most unusually, to ignore in his reply.

Lord WELLS-PESTELL

I will convey what my noble friend has said to my right honourable friend, but we dealt the other day with the composition of the Commission for Racial Equality. The membership of the Commission is limited. If I remember rightly, it cannot be fewer than eight nor must it be more than 15. My noble friend was very anxious that there should be a substantial number—I think, though again I am trusting to memory, that he moved that half the members should represent ethnic groups—and he is now saying that the local community relations bodies should be represented on the Commission. I believe that we must realise that we want to get the best possible membership of the Commission bearing in mind the nature of the work it will do and the people for whom it will be doing that work. We must see as far as possible that all aspects are represented. I do not think I can take it beyond that.

Lord BROCKWAY

In view of the fact that I appear to have made a technical mistake in the drafting of the Amendment, I shall withdraw it now, but I shall return to the subject at Report stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 44 agreed to.

Clause 45 [Research and education]:

11.6 p.m.

Baroness ELLES moved Amendment No. 62B:

Page 27, line 15, at end insert— ("( ) Where financial assistance is given under subsection (1) above, it shall be on the same terms as those specified in section 44(1).")

The noble Baroness said: I beg to move Amendment No. 62B. I start by saying that today as I was coming off a plane I heard somebody say, "It's so much easier to use OPM". I waited to hear what was this OPM. Somebody asked, "What do you mean by OPM?". The answer was, "Other people's money". It seems to me that in times of financial stringency it is more important than ever that there should be very strict control of public expenditure, whether there is a large amount or a small amount involved. As we all know many accumulations of small amounts come in the end to a very big amount.

Looking at public expenditure figures to 1979–80 one sees that on community services in 1976–77 total current expenditure is £29 million and that by 1979–80 it is to be £32 million. I know that not all of this will be spent on race relations, and I should never dream of making such a point. Most of us would agree that it is important that a reasonable amount of money should be spent on this very important aspect of our national life.

Nevertheless, certainly in our Party we expect any public body that is set up to have some form of public accountability, as to what amount of, and how, money is to be spent. In Clause 45 there is no reference, as there is in Clause 44(1), to the effect that any money that is spent by the Commission on research or educational activities is subject to the control of the Secretary of State through Parliament with the consent of the Treasury. We recognise that it is necessary to have a certain amount of day-to-day flexibility and that reasonable sums must be at the discretion of the Commission.

But it has already been pointed out, in talking of Clause 44, that research and education are probably one of the most important aspects in the whole of the Bill, in terms of whether or not the Bill is to be successful. I must confess to having been slightly surprised to see what I assume must have been a rapid conversion by the noble Lord, Lord Ritchie-Calder, to the spiritual Benches, but I now see that he has returned to a more normal and more expected part of the Chamber. Nevertheless, he raised this very important, and to my mind vital, aspect of education. It was very clear, when we debated on Clause 43 what we all consider to be the role of the Commission, that there were very varying and divergent views as to what kind of role and what kind of policies the Commission should take in considering this important question.

We should realise even more that all those who spoke, from watever part of the Chamber, spoke I am quite convinced with determination that the Bill should be successful and should lead to good relations in our community. So even if one takes those who wish the Bill to succeed and who wish for good relations, there was already very great divergence as to how this should be done.

So when we talk of education I should like some indication from the Minister as to what he thinks these educational activities will cover. Does the term cover teaching immigrants to become part of the British people, to be integrated within the British way of life, if there is such a thing; to become part of a community of British people, regardless of colour or race?

Or does it mean that every immigrant group is to have its own culture, and language, and traditions and religion encouraged and is to receive monies for education in this area? Or does it mean, which I suspect it does to a very large extent, the promotional activities according to public relations, social engineering according to others, the policies of persuasion according to others, or in fact the removal of racist feelings by others?

As I see it, all these matters can come under the term "education". Of course, the way in which this so-called education is to be produced by the Commission is vital. So what I would ask the Government is whether they can tell us what kind of public control there will be over the kind of education which, as I see it—and I may be wrong—will be coming from the Commission. Unless we have financial control, is there any other way in which members of the public can ask for Parliamentary accountability for the money—their money—being spent on their being told things which possibly they do not wish to be told or on lines being taken with which they do not agree? I think that if public money is going to be spent on this kind of education, the public should have the right to say how that money is spent.

I realise that Schedule 1, paragraph 16, lays down that the Secretary of State can regulate how the report should be produced, and I should like some kind of undertaking from the Government that in that report there will be listed the amounts of money spent on educational activities, the amounts spent on research and the kind of research undertaken. For instance, I would draw attention to the kind of research being done by the Runnymede Trust. I think that in many ways some of it is quite excellent—and I say this completely unreservedly—and no doubt they get grants from the Government to do some of their research. On the other hand, I fail to see why public money should be spent on research which goes to produce propaganda for the removal of the present citizenship laws, and in fact produces certain types of research which I would consider false, fallacious and misleading. I absolutely agree that people have the right to write anything they like, even if they make mistakes in law or not, but I do not see why the public should pay for it.

Therefore, I should like some kind of undertaking from the Government that there will be some way by which the public can question the kind of work which is being done by the Commission, either to praise it or otherwise. I very much praise the enormously good work which has been done by the Community Relations Commission and organisations like the Runnymede Trust, but I should like the public to have reserved to it the right to insist on their accounting publicy. I beg to move.

Lord NORTHFIELD

May I very briefly return to the point made by my noble friend Lord Ritchie-Calder, to which my noble friend was not completely ready to reply? May we say to him that we are springing this on him without a good deal of notice, and if he should like to reserve his position and write to my noble friend after the debate about the point we are raising, of course we shall be very happy to accept that from him. But may we just make the point again, very briefly? The point is that my noble friend Lord Ritchie-Calder, my noble friend Lord Pitt and others are associated with a body which has been actively trying for some years to press local authorities to undertake a good deal more of what is called multiracial education. That is not educating immigrants but, as my noble friend put it, educating the rest of us to understand a good deal more about the multiracial nature of our society and to have a multiracial approach to things in general. One of the problems, as I understand it, has been that every time this has been pressed on the Government they have replied, "This is a curriculum matter in which we cannot interfere; we must leave local authorities and teachers to decide these things for themselves."

That may very well all be true, but what Clause 44 and now Clause 45—subject, perhaps, as the noble Baroness said, to Government supervision—are going to allow is for the Commission in fact to undertake any educational activities. What we are asking for an assurance about is whether, if the Commission believe, for example, that they should circularise local authorities and should do their best to press them to undertake this kind of multiracial education, that this time there is going to be Government blessing rather than, as has been the case up to now, not exactly hindrance—my noble friend says "discouragement"—but I would say absence of helpfulness.

We should like the undertaking that if the Commission decide to use their powers in this way to press local authorities and perhaps to circularise them, this will be accepted as a legitimate part of their function. In case my noble friend wants to answer it rather than to reserve his position and write to us, may I say he may want to look at Clause 71 where it says that in any case— it shall be the duty of every local authority to work towards the objects of the Act. If the Commission think that it is a good activity to undertake, it shall be, to some extent, under Clause 71, now also the duty of the local authorities in the wide sense to accept this obligation.

We have not had a great deal of encouragement in the past on this point, but we ask that if the Commission can now be persuaded to espouse this kind of work, there shall be no impediment put in their way by the Government and that, on the contrary, there will be encouragement in the future for this kind of work.

Baroness SEEAR

While I agree entirely with the necessity for accountability, I would hope that there is no intention of hamstringing the activities of the Council. Those of us who have had anything to do with this work in the past know that the fact that a great deal of the work has been subject to monitoring by a variety of different Government Departments has held up the work. What one wants is a proper ultimate accountability by the council but that where monies have been made available to the council they will get on and use it without interference by Government Departments, although there must be ultimate accountability. If those two things can be assured that is fine. Reference to the Secretary of State for the spending of public money seems to me to endorse the continuing interference by Government Departments which has hamstrung a great deal of good work.

Lord WELLS-PESTELL

I had already made up my mind to look at what Lord Ritchie-Calder had said earlier on and to write him on this matter. I will also look at what my noble friend Lord Northfield has said. I think that we must face the fact that if we are going to set up a Commission for racial equality and are going to lay down (as we have in this Bill) certain responsibilities for them to undertake which are clearly set out in Clauses 43, 44 and 45, then we must give them an opportunity, when they have been established and have met a number of times, to decide what they are going to do and how they are going to do it and how they are going to implement these things. I do not see at this stage, or at any other in the process of this Bill, that we can spell it out in clear and precise terms. It is for them surely to say, after examining the field, after assessing the needs, after looking closely at what is required, what their policy and what their plan is going to be. I see nothing wrong in accountability. I am sure the noble Baroness, Lady Seear, sees nothing wrong in accountability; but accountability must be an understanding between the Commission and the Secretary of State and the Treasury. There is no reason for there to be any difficulty over that at all.

If I may come to the Amendment of the noble Baroness, I had come prepared to deal with her Amendment, which is much narrower than the things which she herself said. The Amendment reads: where financial assistance is given under subsection (1) above it shall be on the same terms as those specified in Section 44(1)". This Amendment seeks that assistance under Clause 45 for research and educational purposes shall be subject to the approval of the Secretary of State and the consent of the Treasury.

I was going to throw back at the noble Baroness the fact that in paragraphs (15) and (16) of Schedule 1 of the Bill the situation is clearly indicated. It clearly sets out that paragraph (15) makes the provision for all Exchequer money to the Commission subject to the consent of the Minister for the Civil Service and the Treasury, while praagraph (16) requires proper accounting procedures. The expenditure of Government grant is thus subject to the normal checks of estimating and accounting procedures. I think, too, we have to bear in mind—the noble Baroness raised this—that the Commission for Racial Equality has to produce an annual report. In that report there must obviously be not only a question of income and expenditure, but how the money has been spent. I would have thought that this would have to be set out very clearly so that there can be no doubt in anybody's mind where the money has gone.

I would go further and say that it would be reasonable to expect the Commission to require precisely the same from the community relations councils, which also will be in receipt of public money, not only from the Commission. Presumably many of them, if not all, will have substantial sums from the local authority. The same thing will apply there. Assistance under Clause 45 is very closely related to the work of the Commission. Indeed, the research or education must be necessary or expedient for the purposes of Clause 43(1), which outlines the Commission's duties. What is envisaged is research specifically commissioned by the Commission to assist in all its functions. It may be needed to identify the need in particular areas for action to promote equal opportunity or as part of a formal investigation.

The power to assist external research is to enable the Commission to farm out research which it is not possible for its own research staff to do. This, again, is very desirable. The intention to finance this research will have to be included in the Commission's annual estimates, along with other expenses when they are submitted as required by the procedure that I have referred to for the Secretary of State's approval.

I hope that it is not necessary for me to go any further than that; I think I have dealt with what the noble Baroness has raised. I think there is a danger in matters of this kind in trying to tie it up too tightly. I have to give the Commission an opportunity of going very carefully into what is needed in the whole field; to come forward with their plans and a concept of what needs to be done, bearing in mind that they have to get approval—certainly in the early stages—for the expenditure of money. The safeguard, so far as the public is concerned, is a point made by the noble Baroness with which I heartily agree. The public ought to know where the money is coming from, how it is being spent, and on what it is going to be spent. I should be very surprised if any Government, the Treasury or the Secretary of State would be satisfied with a report which does not clearly spell things out.

Lord TRANMIRE

I am concerned about the amount of Parliamentary financial control of these monies which are being paid out, probably to most worthy causes. The noble Lord, Lord Wells-Pestell, referred to paragraphs 6, 7 and 8 of Schedule 1. That part is restricted to the salaries of the Commissioners and their staff, travelling expenses, and so on. It does not refer to the grants made to organisations.

Lord WELLS-PESTELL

I thought I talked about paragraphs 15 and 16 when I mentioned Schedule 1.

Lord TRANMIRE

That is correct. I apologise to the noble Lord; I must have misheard. But I am concerned about this. I hope it is not merely a matter between the Commission, the Secretary of State and the Treasury. Parliament should come into it, and if one looks at the Schedule it will be seen that the accounts and annual report will go to the Comptroller and Auditor General. I should like to know whether the Public Accounts Committee of the House of Commons will have that within their purview. For them to go into it, they must have a detailed list of the organisations which are to benefit under this part of the Act. Before we reach the next stage, perhaps the Government will consider what form the annual report needs to take, and whether it will have a detailed list so that Parliament may satisfy itself that the bodies chosen are the correct ones.

We learned earlier that half a million pounds of tax-payers' money will be involved under Clause 44 of this Bill. That is a fairly considerable sum of money, much of which will be spent wisely by the Commission, but I think Parliament should have the last word about that.

Lord WELLS-PESTELL

I would not presume to know what are the powers of another place. My understanding is that the other place have the right to demand certain information. This is something I will look into and advise the noble Lord about in due course.

Lord SANDFORD

Before my noble friend responds, may I comment on what the noble Lord said about the process whereby the Commission, when established will build up its agenda. Surely much the best way in such a case is for the Secretary of State and the chairman of the Commission to work out together the guidelines to be published. The noble Lord mentioned this. I hope it is intended to do it in that way.

Lord WELLS-PESTELL

Once the chairman and members of the Commission have been appointed, it must be obvious that the chairman and the Secretary of State must get together, probably on several occasions, to consider the broad lines of policy and activity. I should have thought the publication would be after and not before some of these matters had been put into operation and that they had had an opportunity to get on with the job. I would not have thought it would be helpful to say what they intend to do. That could hold up their work considerably.

Baroness ELLES

I have been asked whether I intend to reply. As it is late at night, all I shall say is that I am most grateful to the noble Lord for his answer. I do not find it entirely satisfactory, but it helps towards understanding the nature of this and the kind of accountability there will be. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Clause 46 [Annual reports.]:

11.31 p.m.

Lord O'HAGAN moved Amendment No. 63: Page 27, line 21, after ("include") insert ("a definition of the Commission's strategic functions and")

The noble Lord said: My noble friend friend Lord Sandford asked for earlier, and did not receive, a statement about the overall strategy of the Government in this field and I am not asking for that again at this point. Let me stress to the noble Lord, Lord Wells-Pestell, that I am not making the same request; I am moving this Amendment. The noble Lord, Lord Wells-Pestell, said that when the new Commission for Racial Equality got under way they would no doubt form their own view of what they should do, and having started their work they would then be in a position to know in which direction they were going, along the guidelines given by Parliament, and we could not expect detailed information about how they saw their role until they were set up and working; and again I accept that.

I am not, therefore, asking the noble Lord, Lord Wells-Pestell, to become a prophet and imagine how the Commission are to work day to day. What I am asking him to do is something much more limited. I am asking him to give some meaning to a phrase that has been used in your Lordships' House on Second Reading and in another place in the Committee stage when Government spokesmen have stated from time to time that the Commission are to have a strategic function or a strategic role. What does this mean? Can the noble Lord tell us how this Commission are to be strategic? I imagine this means giving the Government some ideas about policy. Does that mean that the Home Office will feel it has any responsibility for preparing policy on this matter?

What will be the relationship between the Department of the Environment and this new body? How will this new body see their relationship with local authorities? If the new Commission are to have what the Government say they are to have—a strategic role—the Government must have an idea of what that strategic role is to be, even before the Commission get under way. I would ask the noble Lord, Lord Wells-Pestell, to give us some idea of what this strategic role is to be. How will this role fit in with the continuing responsibility of both the Home Office and the Department of the Environment, and with the role of local authorities? I beg to move.

Lord WELLS-PESTELL

If the noble Lord will not mind my saying so, I do not think I want to deal at any great length with the wording of the two Amendments, Nos. 63 and 64. I have probably bored the Committee enough this evening about defining the work of the Commission, and laying down guidelines for local community relations councils, which the Government rightly believe must stem from the thinking of the Commission.

The noble Lord, Lord O'Hagan, raised a point about the strategic role. I admitted earlier to the noble Lord, Lord Sandford, that I do not at this stage feel competent to give anything like a comprehensive reply to him, because the Government themselves have not completed their thinking on the strategic role. However, I think that the noble Lord, Lord O'Hagan, is quite right in asking for something at this stage. The only thing I can say is that the Commission's strategic role, as we have tended to describe it, is very important.

As the noble Lord knows only too well, the term was used in the White Paper on Racial Discrimination to contrast the role of the new Commission with that of the Race Relations Board. The strategic role of the new Commission will be to tackle discriminatory practices in organisations through investigations which it initiates. This contrasts with the dependence of the Race Relations Board on individual instances of discrimination. I think that the word "strategic" aptly describes this wider role.

The new Commission's impact will be much wider than tackling overt discrimination. Through the enforcement of the law against discrimination and the promotion of equal opportunity policies it will be able to have an impact on the inequality which is caused by unconscious assumptions and stereotypes about people. The development, we feel, of this role is highly important, but it does not call for special provision in the Bill to define it annually, which implies that it might change from year to year.

It is, of course, important that the Commission should develop an overall policy. As I said, they will, without doubt, discuss this in their reports. In exercising their responsibilities for co-ordinating and supporting the work of local community relations councils, the new Commission will want, in consultation with the councils, to develop what the noble Lord, I think quite rightly, points out as "guidelines". I do not think I can take the matter any further than that.

Lord O'HAGAN

I am most grateful for that explanation, although it has not explained to me anything which was not already obvious from previous stages of the Bill. However, I am thankful for having that explanation on the record and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 46 agreed to.

Clauses 47 and 48 agreed to.

Clause 49 [Terms of reference]:

11.38 p.m.

Baroness ELLES moved Amendment No. 65A: Page 29, line 12, at end insert ("and such terms of reference shall specify any allegedly unlawful discriminatory acts or contraventions of specific provisions of this Act which form the basis of the investigation.")

The noble Baroness said: With your Lordships' permission, in moving this Amendment I will speak to Amendment No. 65B at the same time, because the principle which I wish to argue and put to your Lordships applies to both Amendments and it will save a little time if I deal with them together. As I see it and as we have been given to understand, the role of the Commission is to remove discrimination and to create equal opportunities. The Commission are not primarily intended to be art enforcing body who are vindictive towards anybody who may or may not be suspected of unlawful discrimination.

It therefore seems that the very first principle which should guide the Commission in their procedures should be based upon the primary element of natural justice. Also it is reasonable to expect that a Commission of this kind—which will, one hopes, be universally respected—will use every means—reasonable, practicable and sensible—to attain the objectives which I think we all hope it will attain.

Therefore when I read Clause 49(2)—the terms of reference—I looked for a definition. Of course, there is nothing in the interpretation clause to say what the terms of reference mean, nor does subsection (2) say what is to be contained in the terms of reference. The same goes for "notice" in subsection (3). There is no indication to show what should be put in the notice, in particular where a person is named. It seems to me that, where there are to be investigations, and in particular concerning named persons, those persons should have the elementary and natural right to know what act of unlawful discrimination they are being taken to task for and on what grounds the Commission wish to issue a notice to them.

It was only when I read the proceedings in another place and similar Amendments were tabled that it was the answer of the Minister which led me to believe that it was really very much more sinister and unfair than would appear on the surface of the Bill. The argument of the Minister was totally inadequate to answer the objections of my honourable friends in another place that, if there was no ground shown in the terms of reference or in the notice, the person named was at a grave disadvantage with regard to what he was being asked to do or not to do.

The argument which the Minister adduced, and which seems to me so extraordinary, and could only lead me to believe that the Government were undergoing a course of lateral thinking, was that because the Commission could only enforce a civil liability and could only ask somebody to stop doing what they were doing, the person doing that thing was not entitled to the protection that he would have had under criminal liability. It seemed to me that the purpose could be only that the Commission did not want the persons to stop what they were doing until they had been able to tell them to do it. It reminded me rather of the case of a boy at school who was doing something wrong and the headmaster wanted to see him, and somebody is sent along to fetch this boy and to say, "The headmaster wants to see you". The boy says, "Oh lor, what have I done, or what am I doing?" The messenger says, "Oh well, I am not allowed to tell you because the headmaster cannot cane you, he can only tell you to stop doing what you are doing; and because if you are not doing it he cannot tell you to stop it you must go on doing it until he can tell you off, so that in his report he can say ' I told the boy to stop doing it and he in fact stopped doing it '." Well done, Commission; we have so many cases of stopping people doing unlawful acts of discrimination because we have not told them what they are doing wrong until they conic before us.

This seems to me to be unreasonable, unsensible and frankly nothing to do with obtaining the objectives as I see the function of the Commission to be. If you want people to co-operate in this very difficult area of relations between people of different colours and different races, you want the Commission to be seen to be reasonable and acting in a reasonable way, and it would surely be reasonable to expect that some kind of provision should be made in the terms of reference, both as to the unlawful discriminatory act of which a person is going to be accused and also in the notice which they are going to receive, and the grounds on which the Commission is going to issue its notice. Therefore, I should be grateful if the noble Lord would give us some help in solving this so far intractable problem, and I hope that the answer will not be on what I would call lateral thinking but a straight and clear answer as to why, so far, this has not been changed. I beg to move.

Lord HARRIS of GREENWICH

Let me begin by saying that once again we are in some difficulty, in that the Amendment tabled by the noble and learned Lord, which we shall be taking next, covers not precisely the ground set out by the noble Baroness in her Amendment, but the ground on which I would wish to deploy the Government's argument is very similar, and I do not know whether it would meet the convenience of the noble and learned Lord to take these two at the same time, in terms of the debate.

Lord HAILSHAM of SAINT MARYLEBONE

I am entirely in the hands of the Committee. I was a little surprised when my noble friend put Amendments Nos. 65A and 65B together. I should have thought that was a meal enough for the noble Lord, Lord Harris of Greenwich, for the time being.

Lord HARRIS of GREENWICH

I will respond appropriately to the noble and learned Lord, Lord Hailsham of Saint Marylebone, but I would wish to point out that I would reserve some of the argument on this particular issue to his later Amendment. I do not want to be unduly tedious by going over the ground on both occasions. Inevitably what I have to say on this particular Amendment covers a large area covered by Clauses 48, 49 and 50, the formal investigative provisions of the Bill.

These provisions have clearly to strike a difficult balance between, on the one hand, the need to respect the rights of those who may be involved in formal investigations, and on the other, the need to ensure that the Commission have fully adequate powers to carry out their duties. The Government have recognised the need to safeguard individual rights which are set out in a number of provisions in these clauses. We have also tried to ensure that the Commission can investigate what they choose to with the minimum of procedural restriction. We do not want to create a situation in which the Commission can undertake investigations only of the most vague and anodyne kind because more substantial investigations are objected to on one ground or other. I fear, however, that, quite unintentionally, these Amendments would increase the risk of problems of this kind

If I may deal first of all with Amendment No. 65A, I think the noble Baroness, Lady Elles, is asking us to ensure in the Bill that where an investigation has been mounted because of an allegation of unlawful discrimination, the allegation should be specified in the terms of reference. I am sure that the Commission would in general let a person investigated know if there is a specific allegation of unlawful discrimination, and if that specific allegation is to be the subject-matter of the investigation. I have no doubt about that at all.

I have so far mentioned the question of investigations into suspected acts of unlawful discrimination but, of course, there are also investigations into wider questions of equality of opportunity and good race relations. Some of these may well begin with allegations of unlawful discrimination. Some, indeed, may cover exactly that sort of area. Just taking one particular example, it is possible that an allegation of indirect discrimination may reveal that disproportionately few members of a particular racial group are in supervisory grades in a particular firm. While the Commission may accept that this situation is not the result of unlawful indirect discrimination, it may well think it worth while making an investigation into how far the employer in question is affording genuine equality of opportunity to all the groups in this particular workforce. In this situation, the Amendment of the noble Baroness would presumably require the terms of reference to specify the allegation which has been made, even though it is not really relevant to the investigation, and even though including the allegation in the terms of reference might get the investigation off to a thoroughly poor start.

Then there are the issues raised in Amendment No. 65B which in a sense is an extension of Amendment No. 65A. Where the Commission wishes to conduct an investigation confined to the question of alleged unlawful discrimination by a named person, it will have to give him notice of the holding of the investigation. By virtue of a rule to be made under Clause 49(2), prescribing the manner of giving that notice, the Commission will have to send the person concerned a copy of the terms of reference.

The Amendment would require the Commission in addition to give full details of the reasons why it believes the person concerned has acted or may have acted unlawfully. My reply to this is that of course the Commission will let the person concerned know the case against him. How else, indeed, can they conduct a proper investigation? However, I do not see why it has to spell out the case in the notice of the holding of the investigation. In fact I think the notice is a singularly inappropriate place for information of this sort, especially if the case is long and complicated.

I do not share the apparent fears of the noble Baroness that formal investigation will be oppressive, or her wish to impose procedural requirements to be satisfied before the Commission can begin an investigation, which could be the basis of pointless challenges of the validity of investigations and possibly of any non-discrimination notices resulting from them. I have outlined why the two Amendments are unacceptable, and we do not believe that we can substantially rewrite these particular powers. Nevertheless, I am certainly prepared before the next stage of the Bill to look at some of the procedural arrangements involved.

11.51 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

I do not find that altogether satisfactory, and the fact that the noble Lord has had to enter into such a long explanation (for which we are very grateful) of what is really a perfectly simple point, at any rate as regards Amendment No. 65B, indicates that he really must look at it again; I say that with great respect. No. 65A I leave on one side for the moment, but there are really two quite separate points here, and I am dealing with the first one under 65B. When a man is going to be made the subject of an adverse inquiry the requirements of natural justice are that he should be told before he comes before the inquiry what is alleged against him. That is true whether he appears before a criminal court, a civil court, charged with tort or breach of contract; it is true if he is up before the committee of his club, or before his trade union; it is true across the whole realm of adverse inquiry directed against a human being. That is what is called "natural justice" in this connection.

So seriously do the courts take a breach of natural justice that they would set aside an expulsion from a club or a trade union if that requirement is not met. I am not dealing with the technicalities or draftsmanship of Amendment No. 65B; I am talking about the perfectly simple substance of the matter. I am not concerned in what form the particulars of any charge or allegation are made; and I am not talking about whether or not they are contained in the terms of reference. These are purely technical considerations and they do not give me any trouble at all. What I want from the noble Lord before this Amendment is withdrawn is a categorical assurance that, where the circumstances specified in Clause 50(2)(b) arise, a man who is asked to come before the Commission shall know unequivocally, if there are allegations against him, what they are. If he will give me that assurance I will not ask my noble friend to divide on No. 65B. Unless we can have the assurance unequivocally stated in one form or another, then I am afraid we shall have to call the Committee to a Division.

Lord AVEBURY

Will the noble and learned Lord help me to understand the argument he has put. If you say what are the allegations made against the person, namely in the notice, that means what act of discrimination is it alleged he has committed. But in the Amendment put down by the noble Baroness the wording is "with full particularity", which presumably means not just that the allegation itself shall be specified in the notice but all the evidence which is being presented to the Commission which leads it to suppose that the allegation may have some force. What I understand the Minister to say was that obviously the facts behind the allegation have to be presented at some stage, otherwise the respondent has no opportunity of refuting those allegations if he is able to do so.

All that the Minister said was that it was inappropriate for the full particulars to be contained in the notice. As I understood the noble and learned Lord, he is quite happy about this situation, and all he wants to be assured of is that at some stage the respondent will have an opportunity of knowing the full facts behind the allegation and he is not concerned with the form, whether or not it appears in the notice. So is there really anything between him and the Government, provided he has a reiteration of the assurance the Minister has already given; that is, that at some stage in the procedure the respondent will know fully the particulars of the allegation made against him.

Lord HAILSHAM OF SAINT MARYLEBONE

Whether there is anything between me and the Government when the Minister has replied to my question at the moment I do not know. I have put an unequivocal question and I want an unequivocal answer. Before a person comes before the Commission in the course of an allegation in the circumstances specified in Amendment No. 52B, shall he have notice of what is said against him or not. I do not think there is anything at all in this question about particularity in evidence. The word "particularity" in my noble friend's Amendment has a definite technical legal meaning.

It means that the charge shall be specified with enough particularity to enable the person who receives it first to know what is said against him, and, secondly, to prepare any answer that he may require to make to protect his reputation and honour. This is a simple proposition. Is the ordinary rule of natural justice, as applied to clubs and trade unions in civil proceedings in the county court, to be applied in this case or not? It seems to me that the noble Lord can give me a firm answer, and then I will tell the noble Lord, Lord Avebury, whether there is anything between the Minister and me.

Lord HARRIS of GREENWICH

I agree with the noble and learned Lord that the rules of natural justice require that the accused, if I may use that term, should have notice of the substance of any particular allegation which may be made against him; clearly the Commission will comply with these rules, and in our view there is no need for an Amendment specifying it.

Lord HAILSHAM of SAINT MARYLEBONE

I still feel that the noble Lord ought to assure me that some form of requirement should be specified in the Bill before it becomes an Act. We must have it clearly laid down as a principle on which the Commission must act that it must not proceed against an individual unless the rules which I have specified are properly observed. It ought to be in the Act. I do not think it necessarily ought to be put in the form proposed by my noble friend. I think it can be put into the Bill at Report stage, and if the Minister will assure me on that I think we can move to the next Amendment.

Lord HARRIS of GREENWICH

I will gladly look at that point. The issue I addressed myself to was the question of the notice. That was the question raised specifically in the Amendment. The noble and learned Lord has asked for the matter to be looked at by Report, and that will be done.

Baroness ELLES

I am grateful to the Minister for the way in which he has replied to this Amendment, and on his assurances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

12 midnight.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 66: After Clause 49 insert the following new clause:

Rights of persons named in terms of reference of formal investigations.

("( ) Whenever any notice of the holding of any formal investigation is served upon any person under section 49(3) of this Act, such person shall have the right—

1. (a) to give evidence orally or in writing to the Commission, to call a witness on his own behalf, and to cross-examine other witnesses; and
2. (b) to be represented by counsel or solicitor or other; and the provisions of the Legal Aid Act 1974 shall extend to any such person, and the relevant notice shall inform him of each of the rights conferred upon him by this subsection.")

The noble and learned Lord said: This is the second stage of the situation involving the person whom the noble Lord, Lord Harris of Greenwich, called the defendant, which is perhaps a rather formal description; at any rate, we have been discussing the position of a person who is brought before the Commission.

Lord AVEBURY

The respondent?

Lord HAILSHAM of SAINT MARYLEBONE

I am obliged to the noble Lord. "Respondent" is an altogether better term in this context. Lord Harris has already been reasonably forthcoming on that point, the stage at which a person is brought before the Commission, so I will not pursue it. It must be remembered, however, that when he gets there he must be entitled to defend himself and the proposed new clause is designed to specify his rights when he gets there. In other words, we have passed from his rights before he goes to his rights when he gets there, and the rights as specified in the new clause are to give evidence himself, whether orally or in writing, and to call a witness on his behalf and cross-examine other witnesses. That, I should have thought, was straight-forward natural justice which required no justification on my part. He is entitled, if he is brought as a respondent, to do the things which are necessary in order to present his case; to lead evidence and to challenge evidence. Then, we have proposed that he should be entitled to be represented by a counsel or by a solicitor or by some other person—I am not sure that the drafting is very elegant at that point—and that the provisions of the Legal Aid Act shall extend to him. Again, I am not wedded to draftsmanship here.

The more serious one regards these allegations the more one must be entitled to defend oneself against them and to bring out the truth. Paragraph (a) seems to me to be the minimum and (b) is also really essenial because, as I think the noble and learned Lord, Lord Denning, said in a quite recent case, in a great many cases the individuals charged are inarticulate and the provision of an advocate of some sort—a solicitor or counsel—is part of natural justice. We have gone a little further. We know that in cases of particular kinds trade union officials act as advocates, and very efficient they arc in that sort of case; most of us have had experience of appearing against them and we know how good they are at that kind of work. There are all sorts of other people who can act, as it were, as prisoner's friend, often with great skill. Not everybody is able to present his own case effectively. I am a little surprised that there should have been any difficulty in another place—because this is a reflection of something that was discussed there—about accepting such a new clause, at least in principle, and I will listen with interest to the Minister's reply tonight.

Lord HARRIS of GREENWICH

As the noble and learned Lord indicated, this Amendment was tabled in Committee in another place as well as on Report. It was unacceptable to the Government then and I fear that it is unacceptable now. As I said when we were discussing the last Amendment, the formal investigative provisions in these three clauses, Clauses 48, 49 and 50, have to do this difficult thing of balancing the public interest as represented by the Commission and the position of the respondent or the potential respondent, and, as the noble Lord, Lord Avebury suggested, "respondent" is a rather better description than the term "accused", which I used on the last Amendment.

As I indicated in the discussion on the previous Amendment, we have gone to fairly significant lengths—as is proper—to look after and protect the individual rights of a person who may find himself in difficulty with the Commission. First, Clause 49(2) requires there to be specific terms of reference in any formal investigation. Secondly, subsection (3) deals with notifying the holding of investigations to those concerned. Thirdly, Clause 50(2) limits the Commission's powers to require information. Fourthly, subsection (3) of that clause limits the information the Commission may require, but we have tried to ensure that the Commission can investigate what they choose with the minimum of procedural restrictions.

So far as the Commission's strategic role is concerned, the Bill does not even involve a full civil liability, for the only civil action the Commission can bring is one to stop, not one to penalise nor to obtain compensation for unlawful discrimination. The proposed new clause would build quite complicated procedural requirements into the holding of investigations confined to the activities of named individuals. It seeks to equate a formal investigation with full blown civil proceedings.

I think, with great respect to the noble and learned Lord, that this is unnecessary, first because some investigations—even those into the activities of named individuals—will be concerned with issues other than unlawful discrimination. That, after all is only one of the Commission's duties. For example, it will be able to conduct investigations into ways of improving poor relations between different racial groups. In such cases, civil proceedings are not even in sight. Secondly, even where an investigation was concerned with unlawful discrimination by a named individual, civil proceedings are only on the horizon. Before any question of civil proceedings would arise, six fences would have to be cleared: first, a finding of unlawful discrimination by the Commission; secondly, a warning that the Commission was minded to issue a non-discrimination notice; thirdly, a chance for the recipient to make representations, either orally or in writing, as he thought fit; fourthly, the issue of the non-discrimination notice; fifthly, possible appeal proceedings against the notice and, assuming that the notice was upheld, sixthly, a further contravention by the person concerned. All this, I repeat, before any proceedings can begin.

Of course, this would not be for damages or compensation. However, there is another objection and I think it a not unimportant one. It relates to paragraph (b) of the proposed new clause. It must be remembered that not all investigations will be related to unlawful discrimination. The Opposition's proposal would create a serious anomaly; it would create a situation whereby anyone the subject of a formal investigation by the Commission would be eligible for legal aid for hearings. He could get legal aid in a situation of that kind for the formal investigation by the Commission, but the same person would not be eligible for legal aid to contest exactly the same case before an industrial tribunal. I am sure that, on reflection, the noble and learned Lord will appreciate that this is a very substantial anomaly to write into an Act of Parliament and I find it hard to see how one could justify a decision to write a proviso of that kind into the Bill.

Quite apart from the argument I have deployed, I hope that the Committee will agree that the Bill already goes a very long way to meet the problem identified by paragraph (a) of the new clause. The subject of an investigation will have the right to make oral or written representations to the Commission if they have indicated to him that they are contemplating issuing a non-discrimination notice, and, moreover if for the purposes of making oral representations the person concerned wishes to be represented he can be. I very much hope that on reflection the noble and learned Lord will decide not to press the Amendment.

12.10 a.m.

Lord HAILSHAM of SAINT MARYLEBONE

Let us see about this; I am not sure that I am entirely following all of it. To begin with, I do not agree that where natural justice is concerned that is a business of balancing the requirements or needs of the Commission against the rights of the individual. Where natural justice is concerned, the rights of the individual are paramount over the investigating tribunal.

Secondly, I am not at all sure how far what the noble Lord has now said is compatible with the European Convention on Human Rights, because that gives more or less, though in different language, rights which are enumerated in paragraph (a) to individuals whose position can be indemnified as a result of an investigation. A full and fair hearing involves that.

It is not good enough for the Government to say that they are just balancing things out, when they are under a solemn international obligation to give what I have asked to be written into the Bill. I am not clear why the noble Lord says that under (a) the person concerned is entitled already to do what I want written into the Bill. If he could persuade me of that—and I thought he was saying that at the end of his speech—I should find that that was a very much more substantial defence. Where is it in the Bill? I will give way in a moment. I understood the noble Lord to go on to say that he had gone a long way in another part of the Bill. to give me what is in paragraph (b). Again, if he is right on that it would make a very great deal of difference to my attitude on this Amendment. Perhaps the noble Lord will give me that information. If may be that we want to revise this clause in one respect or the other, but unless I have this information I am almost bound to divide the Committee on this.

I am quite willing to be talked out of it if there is something substantial of the kind I have missed, because one is only too conscious of one's limitations in this respect. But unless I can see something in that respect, I have either to divide the Committee or put down something substantially the same on Report and divide on that.

Lord AVEBURY

I should like to put a further point to the noble Lord. I am not entirely clear about the powers of the Commission to which he referred. I was trying to follow the noble Lord, but I am not absolutely certain that I have got the point. I think he said, in repetition of what the Minister told the Committee in another place, that the only power of action which the Commission would have, following an investigation against the respondent, would be to issue a non-discrimination notice. But one sees that in Clause 56 there are various actions that might be taken, including that involving an order requiring the respondent to pay compensation, and further measures can be taken against him, under paragraph (c) of subsection (1) of that clause.

If the non-discrimination notice was the only thing which could emerge from such an investigation I think the apparatus which is proposed to be erected by the noble and learned Lord in paragraph (b) would be rather excessive. I wonder whether there might not be an analogy here with the Health and Safety at Work Act, under which stop notices may be issued against an employer who is accused of contravening any of the provisions of the Act. One would not expect him to be represented by counsel in any inquiry which might be undertaken by the factory inspector.

On the other hand, if the financial penalties which are provided for under paragraph (b), which I think might go as high as £2,500, could result from such an inquiry, then one would expect a far greater degree of protection than on the mere issue of a stop notice, which in any case might be contested by the respondent. If the noble Lord could reply to that, it would certainly help us to make up our minds as to how we should react to the noble and learned Lord's Amendment.

Lord HARRIS of GREENWICH

Perhaps I may deal with one particular point that the noble Lord, Lord Avebury, has raised. As I endeavoured to point out when I was speaking initially on this Amendment, the only civil action which the Commission can bring is one to stop—and the analogy he gave was therefore an interesting one—an act or action so far as unlawful discrimination is concerned, not to penalise a person or to obtain compensation. That is what I was trying to point out to the noble and learned Lord—that here we are not even talking about what might be described as full-blown civil proceedings.

So far as the noble and learned Lord's appeal to me is concerned—and I always, particularly at this time of night, react favourably to appeals of that sort—I hope I shall be able to satisfy him, although I am not wholly sure that I shall be able to do so. I have endeavoured to point out that in any event there is this (in my view) considerable flaw on what I might describe as the legal aid point. The noble and learned Lord did not touch upon this, perfectly reasonably, when he came to speak; but I feel it very hard to justify a situation where legal aid is apparently to be given when the Commission are involved, but not in exactly the same case when the matter goes to the industrial tribunal. I do not see how we can justify that, and I suspect that the noble and learned Lord would find it very difficult to do so, as well.

On the particular questions which he asked me, it is perfectly true that the Bill does not provide explicitly for these things. What natural justice requires, the Commission will have to provide or they will of course themselves be in peril in the courts. The European Convention certainly does not require that rights of the kind which he specified should necessarily be spelled out and conferred explicitly in legislation. Clause 58(5) provides some slight answer to the questions which he asked, but not wholly. My answer to him, therefore, is that what I have said indicates that there is not an explicit answer to all the questions he asked me so far as this particular piece of legislation is concerned; but the Commission, like all other statutory bodies, have to behave in a proper way. They have to take account of the requirements of natural justice, and if they do not do so they will themselves be in difficulties in the courts.

Lord HAILSHAM of SAINT MARYLEBONE

I am not altogether happy about this because I think myself that natural justice and the rights of individuals have become such an important issue that when proceedings are laid down in an Act of Parliament one should provide for them in that Act; and I am afraid I am not satisfied with the noble Lord's explanation. Nor am I particularly impressed with the legal aid point. Whether and in what circumstances legal aid should be provided before an industrial tribunal is, of course, a matter of constant dispute, but it is not of very great importance in this connection because, as one knows, alas!, only too well, the legal aid regulations have been bumping along since 1949 at the public assistance level, and I do not expect that many persons who are going to be hauled up as respondents in these cases are bumping along at the public assistance level. So the question of legal aid, although at a certain point it might marginally be important, is, I think, really rather academic in this context.

There is, however, something which has gone wrong at least with the printing and, it may be, with my drafting of the first line, paragraph (b). This worries me more than it appeared to worry the noble Lord opposite. What I shall do is to ask leave to withdraw this Amendment; but the noble Lord must understand clearly that he has not got away. He is going to find when we come to Report stage that I have put down another and perhaps slightly better drafted Amendment which deals with the substance of this matter. Then he will face a Division unless he gives in.

Lord HARRIS of GREENWICH

I do not wish to prolong the proceedings at this hour, particularly when the noble and learned Lord is, as ever, being reasonable; but I would say that I do not think that it carries us very far to make drafting points in discussion of Amendments put down.

Lord HAILSHAM of SAINT MARYLEBONE

I feel a certain conscience about this. I ought to have seen that there was either a misprint or a mis-drafting. Equally, I pay enough attention to the legal aid point to contemplate removing it from my revised draft. As I do not want the Committee to vote for something that I could not intellectually justify, the best course is for me to do what I have said. On those distinct terms and in a rather nasty tone of voice, I ask leave to withdraw the Amendment.

Amendment by leave, withdrawn.

Clause 50 [Power to obtain information.]:

12.22 a.m.

Lord MONSON moved Amendment No. 67:

Page 29, line 35, at end insert— ("Provided that the time at which the attendance is to be made shall not be less than 21 days after service of a notice under section 49(3).")

The noble Lord said: At last I can move an Amendment which I am sure will find favour in all quarters of the Committee, not excluding the Government Front Bench. My Amendment has the most respectable antecedents imaginable. It is a watered-down version of one moved by Mr. David Lane, the chairman-designate of the Commission for Racial Equality or the Community Relations Commission or whatever we shall finally come to call it, in Standing Committee in another place on June 15th. I do not think I can do better than quote from Mr. Lane's speech in column 605. He spoke of the need to have this legislation in operation with the maximum of good will. He went on to say: I am thinking particularly of those in industry"— and he went on to give an example or two.

Consider the case of a director of a small engineering firm about to fly out to Rio or Montreal or Abu Dhabi to secure a valuable export order. Can he be expected to drop everything at a moment's notice to travel halfway across England to attend an investigation of the Commission, particularly if he happens to be totally innocent of any discrimination?

The reply given by the Minister of State in another place was rather unsatisfactory. He said that the sanction for non-compliance with a notice is for the Commission to go to a county court (or in Scotland, the sheriff court) to obtain an order to comply; so that if there is an unreasonable requirement, the county court would, I believe, refuse to make an order to comply with the original requirement and substitute a more reasonable one. This still involves the exporter in a great deal of trouble and takes up far too much of his time. Even a motorist who has been accused of a quite serious motoring offence normally is given three weeks' notice before he has to appear before the court.

I have tried to make the Amendment as acceptable to the Government as possible by reducing the minimum period of notice to 21 days in contrast with the 28 days proposed by Mr. Lane and by confining the application of the Amendment to paragraph (b) of subsection (1) of Clause 50 instead of both paragraphs (a) and (b). I think that this disposes of all the objections raised in another place. I think it extremely reasonable and I beg to move.

Baroness HORNSBY-SMITH

I am very happy indeed to support the Amendment put forward by the noble Lord, Lord Monson, because in phrasing this clause I think that the Government have thought of the big firms, the Shells, ICIs, Sainsburys and Marks and Spencers, who have lawyers in their offices and staff that can deal with this situation. I beg of the Government to think of the 200,000 companies which do a very good job in this country and have under 200 employees. A vast number of those have 50 or 70 staff. It is monstrous to think that if the boss of a family business is away trying to get export orders, he has to return to give all his attention to this because he feels that a reflection on his company of this nature is something that only he can deal with. Probably his staff will hang on to it and hold it until he gets back because the boss will make the decision and deal with it.

We should think of the impact on the small companies Who do not have tame lawyers in their offices. They do not have lawyers at the end of a telephone who will provide a QC at a moment's notice to advise them. We have many companies which are the backbone of this country. I believe that we should give them reasonable time. If you can give somebody who has committed a motoring offence three weeks, then I believe that anybody who is resisting and possibly putting up a perfectly justifiable case against something which will smear his company for the enrolment of future employees, should be given reasonable time to deal with it. My plea is particularly for the smaller company which does not have a team of lawyers in their offices. I support the noble Lord.

12.27 p.m.

Lord HARRIS of GREENWICH

I must, I fear, disappoint the noble Lord if he assumes, as I believe he did, that the Amendment would be greeted with universal applause. It may be in other parts of the Committee; but I am afraid it cannot be by the Government, I hope that one reason for this will convince him. I hope the thought processes by which we get to that particular conclusion will also, on reflection, commend themselves to him. The noble Lord is right, the issue was raised in another place. We said that we would look at it again. We have but, unhappily, we have not found that we are able to agree with the noble Lord's Amendment. One of the reasons why we are opposed to the whole idea of a time limit is that it would be far too rigid. In certain circumstances, the period chosen, 21 days—it was 28 days in another place—will be unnecessarily long while in another that will be far too short.

We must not overlook the point that the requirement to attend to give oral evidence may be accompanied by a requirement to—and I quote from Clause 50(1)(b): …produce all documents in his possession or control relating to any matter specified in the notice". If we specify a period there will inevitably be a tendency, which I think would be undesirable, to regard that period as, ipso facto, reasonable. I think that the right approach is the one in the Bill. We must expect that the Commission will first try to agree a mutually convenient time. I do not think, if I may say so to the noble Baroness, that we must assume that the Commission will in all cases be wholly unreasonable to the interests of small exporters, and things of this sort.

I am sure the Commission, headed by Mr. Lane, will behave reasonably and will take account of any particular diflculties of this sort. They will try, I am sure, to fix a reasonable date and place for the people concerned. I do not think anybody has an interest to create a whole series of confrontations on the question of what day a particular person gave evidence. That is an unrealistic fear. Moreover, if the Commission issue an attendance notice, and the recipient thinks that he has been given unreasonably short notice, it will be open to him to attempt to get the Commission to change the date of his attendance. If he fails to persuade the Commission, he will be able to challenge the reasonableness of the notice by simply telling the Commission that he does not intend to comply with it. It will then be for the Commission, if they so decide, to seek a county or sheriff court order requiring compliance. The court will be able either to grant an order, as it were, "enforcing" the "attendance notice"; or to make an order requiring attendance in accordance with directions imposed by the court (in effect, amending the "attendance order"); or grant no order at all. In other words, the courts will have ample discretion to deal with unreasonably requirements by the Commission were the Commission minded to be wholly unreasonably. They are not the only people who would make a decision in this matter. If the person concerned thought he was being treated harshly or unreasonably by the Commission, the matter could be settled ultimately in the courts.

That is why, as a matter of principle, we cannot go along with the noble Lord's Amendment. Perhaps I may be able to persuade him that this Amendment is in any case unsatisfactory, in terms of what the noble Lord has in mind. The problem is that even if the idea of a time limit were acceptable, the one he has proposed in his Amendment would be of no practical use since it operates from the wrong point in the procedure. His Amendment would prevent a person from being required to attend to give information not sooner than 21 days after the issue of notice requiring attendance but sooner than 21 days after the announcement of the investigation in accordance with Clause 49(3). Thus to take an extreme but, I think, telling example, the Commission would in fact comply with the proviso in the Amendment if 20 days after the announcement of an investigation it issued a notice requiring a person to attend to give oral evidence a mere five days later: the person would have had a mere five days' notice, but 25 days would have elapsed after the anonuncement of the investigation and so the protection embodied in the noble Lord's Amendment would be to no avail. That is why the Amendment contains a major flaw.

12.33 a.m.

Lord HAILSHAM of SAINT MARYLEBONE

I should like to make one point about this. It is probably true that for one reason or another the exact form of this Amendment would not be accept able. Nevertheless, there is a substantial point behind it; that is, that a person should be given reasonable notice before he is made to come. If I were drafting this myself, I should like to know more about Clause 50 (4), where a person fails to comply with the preliminary notice. The application is then to a county court in England and a sheriff's court in Wales for an attendance notice, which is backed by procedure for contempt.

Oddly enough, I was expecting to find somewhere about there a provision that the Lord Chancellor or the rules committee of the country court could make rules about this. Both the Lord Chancellor's Office and the rules committee of the county court are perfectly reputable bodies, which we all respect. Had I found there proper provision for service of a reasonable notice to be given at that stage, I should have felt a good deal happier about this part of the Bill. Before he continues any further, I wonder whether the noble Lord would inquire of the Lord Chancellor whether there is not need in the Bill for provision at that stage, when application is made for the power of rule-making to be given to the county court as to make this work to everyone's satisfaction.

Lord HARRIS of GREENWICH

I will gladly discuss the matter with my noble and learned friend.

Lord MONSON

I am very grateful for the support which has been given in principle for this Amendment and also to the noble Lord, Lord Harris of Greenwich, for his very full explanation. Of course, I appreciate that for technical reasons if the Amendment is not satisfactory there is no point in going ahead with it anyway. All I can say is that I only hope he is right when he says that the Commission will at all times be reasonable, because all the procedures which he has suggested can he adopted in the case of an unreasonable request and will still take up people's time and cause trouble if they have to deal with the court and so on. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 50 shall stand part of the Bill?

Lord MONSON

I wonder whether I may put another question to the noble Lord, Lord Harris, on Clause 50. Subsection (3) provides that no person shall be required to attend at any place unless his travelling expenses are paid or tendered to him. Is any provision made—there does not appear to be—for paying his hotel expenses if he has to stay overnight, and, if not, why not?

Lord HARRIS of GREENWICH

As I understand the situation, his necessary expenses will, in fact, be met. I assume from that that any reasonable accommodation expenses would be covered. I assume that the answer is in the affirmative, but I should like to check.

Clause 50 agreed to.

Clauses 51 to 53 agreed to.

Clause 54 [Jurisdiction of industrial tribunals]:

12.37 a.m.

Lord BROCKWAY moved Amendment No. 67A: Page 32, line 45, leave out ("Part II"( and insert ("any provisions in this Act").

The noble Lord said: This clause deals with the jurisdiction of industrial tribunals. My Amendment proposes that, instead of complaints being made to an industrial tribunal, they should be made with other complaints to a tribunal specially established for that purpose. To save time, I should like to argue with Amendment No. 67A the case for Amendments Nos. 67B, 68B, 68C, 69D, 68E, 86A and 87A.

There are three basic objections to decisions being made by industrial tribunals. The first is that racial discrimination is a very different problem from industrial relations and it should be treated separately. Secondly, industrial tribunals can deal only with alleged discrimination at work, while discrimination in education, housing and goods and services will be dealt with by the county courts. This will inevitably cause confusion among those who feel that they have been the victims of discrimination. Experience under the Sex Discrimination Act shows the dangers. During the first eight months of the operation of that Act, only one case was notified to the Equal Opportunities Commission, although there is no doubt that there were a large number of such cases. If women were deterred, it is probable that an even greater proportion of cases among ethnic minorities would fail to take action.

My third reason for urging that industrial tribunals are not suitable is that their personnel, while appointed to deal with issues of wages, working conditions and management, may not be able to cope adequately with cases of racial discrimination. I do not suggest that the personnel would be prejudiced, but they are appointed primarily to deal with complaints related to conditions of work and they are almost entirely of the majority community. The psychological effect upon the complainants may be bad, intensifying racial feeling among them.

Turning to Amendment No. 87A, I submit that the tribunal should be specially established by the Secretary of State for the purpose of determining applications under this Act".

For the reasons I have stated, I beg to move this Amendment, and I shall be moving the subsequent Amendments.

12.42 a.m.

Lord JACQUES

First I should state what the effect of these Amendments would be. The effect would be that employment cases would go to the new tribunal and other cases would go to the new tribunal or to the courts. This may not be what was intended, but in fact that is the effect of the Amendments. In 1968 careful consideration was given to the proposal in the Street Committee Report that there should be a special tribunal for race relations cases. The Government came to the conclusion that this was not necessary and they remain of that view. What was done in 1968 and what is now proposed is that we must work within the existing machinery of the law, though adapting it a little where that proves to be necessary. We do not believe that we should be justified in taking any other special steps.

We believe that there are two dangers in having special tribunals. First of all, there is the danger of giving the appearance of special treatment to minority groups. We do not believe that that would in the long run enhance the objective of harmonious race relations. Secondly, there is the danger of isolation. We believe it is important that the courts which deal with, for example, racial discrimination by a landlord against a tenant should be fully familiar with the ordinary landlord and tenant law as it is working from day to day in the courts. For similar reasons, in employment matters the argument for using the industrial tribunal system seems to us to be convincing. Tribunals are responsible for the largest area of labour law, and it is important that cases involving racial discrimination in employment should be heard by the tribunals which have a wide knowledge and experience of employment cases.

Finally, there is the question of cost. We are living in an era when public expenditure has to be rigidly controlled and when we have to get our priorities right. We have, in particular, to avoid duplication. We are of the opinion that the setting up of special tribunals would be a measure of duplication and that the cost would be substantial, and it is not a cost to which the Government could give high priority.

Lord HAILSHAM of SAINT MARYLEBONE

I agree with the noble Lord that it is unwise to set up special tribunals. I have myself had some doubt whether the county court should not be used to the exclusion of industrial tribunals in these cases. I think the multiplication of tribunals since the war has been a great evil, and certainly it is an evil to which the Council on Tribunals has drawn the attention of successive Lord Chancellors. But I think that the noble Lord, Lord Brockway, has got one point which needs to be considered. It may be that the Amendment standing in the name of the noble Baroness, Lady Seear, is a possible vehicle for its discussion.

I am not at all happy that the ordinary industrial tribunal—with which I was familiar in theory when I was the Lord Chancellor, but for various reasons I have never had the pleasure of appearing before one—is a very suitable vehicle for trying these cases. It is all very well to say they are concerned with labour law; they are mainly concerned—although not of course exclusively concerned—with unfair dismissal cases, which are a very different cup of tea from the kind of case that is contemplated here, and I rather wonder whether the constitution of the industrial tribunal is really suitable for the trying of this kind of case. The chairman is a lawyer as a rule and the other two characters are employers' representatives and I think workers' representatives who in practice are trade union affiliated.

I think the noble Lord, Lord Brockway, is right to say that some of his clients—if I may call them that—are not particularly well represented in a tribunal composed in that way. On the other hand, if you have a lawyer as the chairman and an ethnic minority member and a majority community member then you have destroyed the industrial tribunal altogether because you have not got an industrial tribunal; you have something else. This is something of a dilemma, but I think in the end I would not go for a special tribunal. I would try—although I have not tabled an Amendment to this effect—to bring this into the general ambit of the courts.

Lord BROCKWAY

I am entirely unimpressed by the statement made by my noble friend Lord Jacques, but in order not to spend the time of the Committee I will not press this Amendment to a Division. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.49 a.m.

Baroness SEEAR moved Amendment No. 68:

Page 33, line 8, at end insert— ("(3) The industrial tribunal hearing complaints under this Act shall include not less than one member appointed from a list of persons appointed and maintained by the Secretary of State, being persons appearing to the Secretary of State to have special knowledge and experience of problems connected with relations between persons of different racial groups.")

The noble Baroness said: I hope that this Amendment will gain the support of the Committee because I believe that to some degree at any rate it meets the objection put forward by the noble Lord, Lord Brockway, to the industrial tribunal as at present constituted. It does it in a way which is more practical and which meets the point made by the noble Lord, Lord Jacques, that there should not be a separate tribunal, and therefore a duplication of tribunals. With all respect to the noble and learned Lord, Lord Hailsham, I would say that there are a considerable number of cases which will be employment cases.

Industrial tribunals deal not only with unfair dismissal today but with a wide range of labour law cases coming up at the level of the factory, and employment cases on training opportunities, on promotion opportunities, and so on, in which discrimination can very likely take place and they are so much in line with the other cases which go to the industrial tribunal under one or other of those headings that they seem to me to be the appropriate place for the employment cases to go. If they had to go to the courts, I think there would be delay, and in a very great many cases the people from the ethnic groups would simply never take them to the court. So I am very much in favour of these cases on the employment side going to the industrial tribunals.

I am also very much of the view of the noble Lord, Lord Brockway, when he questions whether the industrial tribunals as at present constituted are really properly set up to deal with cases of this sort. There are two points here. There is a considerable amount of, so to speak, technical knowledge which is needed for dealing with racial discrimination cases. The conciliation committees under the 1968 Act have had people dealing with these cases who have gained a great deal of expertise over the eight years that they have been operating, and such expertise is needed. Under the 1968 Act the conciliation officers had to learn a great deal before being able to handle these cases appropriately. I accept that their task and that of the industrial tribunals is not identical, but there is a body of knowledge there that you cannot at all rely on being represented in the industrial tribunals as set up at present.

Not only is knowledge needed, but there is the whole effect, the public relations effect, of the belief in the ethnic communities that they do not get a fair deal in the industrial tribunals unless someone knowledgeable in this field is on those tribunals. To take the parallel of what is happening under the Equal Pay Act, unlike the Sex Discrimination Act, many cases under the Equal Pay Act have gone through the industrial tribunals in the last nine months. There is a growing body of feeling that these cases have not had a very fair hearing. I do not believe that all these objections to the findings of the industrial tirbunal on equal pay are justified in fact, but there is a lack of confidence that the people on the industrial tribunals fully understand the particular problems of women in connection with the Equal Pay Act. If that is true of that Act, I contend it would be much more so the case in dealing with the racial minorities. The need to have someone on the industrial tribunals who has expertise in this field and is also known to have expertise in this field is of the greatest importance. I beg to move.

Lord JACQUES

May I start by apologising for the length of my reply. This is an important matter on which I feel I should give a full and detailed answer. The question raised is one which was very closely examined in Committee in another place. There was a wide-ranging debate on Amendments to this clause which were designed to change the constitution of tribunals when hearing a case of alleged racial discrimination.

The Amendment of the noble Baroness is designed to have an effect similar to those Amendments. It would change the constitution of the industrial tribunals themselves so that a person with special knowledge and experience of race relations would be required to hear every case brought under the Bill. I must say straight away that I believe there are fundamental objections to such a proposal which was generally opposed by both sides of industry with whom we consulted after the debate in another place.

There are three members of a tribunal. The chairman is a solicitor or barrister of not less than seven years' standing who is appointed by the Lord Chancellor, and there are two lay members appointed by the Secretary of State for Employment after consultation with organisations representing employees and employers. In the words of the Statutory Instrument, they must be people, with knowledge or experience of employment in industry or commerce". Industrial tribunals are part of the adversary system of law, and are not inquisitorial bodies. This means that, unlike for example the Conciliation Committees of the Race Relations Board, it is not the job of the tribunals to conduct an investigation to gather facts which are independent of those presented at the hearing. The tribunal's role is to apply the law to the facts of the particular case as they are presented by the parties, or those representing the parties, whether the case is about unfair dismissal, redundancy payments or sex or race dsicrimination. Obviously, to do this effectively tribunals have to be well-informed about employment questions. That can best be achieved by members knowing the day-to-day difficulties which face employers and workers, and this is ensured by the contribution of the lay members, who are people with knowledge or experience of employment in industry or commerce. It is clearly an advantage for members also to have special knowledge of race relations where possible. Some of the people who have served on Conciliation Committees of the Race Relations Board are already serving as tribunal members, and we hope that more of them will do so.

But it has always been a basic principle of the system that lay members should not be specialists but should handle all the types of employment cases that fall within the jurisdictions of the tribunals. This encourages the development of a broad and balanced view by the lay members: it enebles them to apply relevant experience in one jurisdiction to problems in another; and to appreciate readily the relationship between the two. This is crucial, not only because the problems in one field may have much in common with those in another, but also because jurisdictions may overlap so that a case brought under one set of statutory provisions may be determined under another or both. These arrangements, we believe, have helped the tribunals acquire a reputation for consistency, impartiality and fairness. We would be doubtful about changes which might put these advantages at risk.

Moreover, there would be serious practical and administrative problems involved if the Amendment were accepted. If, for example, the member with knowledge and experience of race relations is to be one of the three members of the tribunal, it will be necessary that he has the requisite "knowledge or experience of employment in industry or commerce", or the tribunal will be unable in law to reach a decision should the case in question turn not on racial discrimination but on unfair dismissal or sex discrimination. And a tribunal would not be able to hear other cases not involving racial discrimination if it were specially constituted. There would also be the very real difficulty of establishing in advance of the hearing those cases for which the tribunal had to be specially constituted. If, for example, racial discrimination arose as an issue during the hearing, it might be necessary to adjourn the hearing until the member with knowledge and experience of race relations was able to be present. This would lead to inconvenience and delay for both the applicant and respondent and for the members of the tribunal.

However, the Government recognise that although the proceedings at a tribunal are informal and straightforward, some members of minority groups may need special help—whether because they have difficulties with English or for some other reason—in presenting their case. With that in mind, the Bill makes provision for the Commission to use its discretion in giving such help to complainants as it thinks necessary. The extent of that help will, of course, be a matter for the Commission to decide. But I am sure that one of the best ways we can ensure that the individual is seen to get a fair hearing—in a way which wins the respect of all those concerned—is by the provisions we are making for the Commission to help him.

The Bill also provides for a questions procedure before the hearing by which an aggrieved person will be able to question the person he thinks may have discriminated against him. This procedure will help an individual to decide whether to institute proceedings by establishing as far as possible the facts of the case, and, if he does so, to formulate and present his case in the most effective manner by identifying in advance what is in dispute. It may be that in some cases of alleged racial discrimination it may be desirable to call an expert witness who can speak as to eg the religion or customs of a particular race. It is open to either of the parties to do this. In Committee in another place, the Government undertook to consult the two sides of industry, and other interested bodies, on the desirability of extending the existing statutory provisions so that the tribunal, and not just the parties, could take the initiative in calling expert witnesses when the tribunal thought it necessary. This suggestion was put to the bodies concerned, together with the further suggestion that tribunals might have a discretionary power to appoint assessors with special knowledge and experience in the field of race relations where this seemed desirable. It was pointed out that there was already a possible precedent for such a power in the Health and Safety at Work Act 1974.

The comments we have received show that there is not very much support for the introduction of powers to enable industrial tribunals to call expert witnesses. As to the appointment of assessors when hearing race relations cases there are divided views. The Chairmen of the Race Relations Board and the Community Relations Commission doubted whether anything would be gained if assessors were provided in tribunals. Although this view was shared by some of those bodies which were consulted about the appointment of lay members of industrial tribunals, others, including the CBI and the Council on Tribunals, suggested that assessors might have a helpful contribution to make. This is clearly a difficult matter but I can say that the Government are prepared to consider whether there might be some advantage in a provision under which assessors could be appointed at the request of a party with the agreement of the others, or at the suggestion of the tribunal provided both parties agreed. We should welcome the views of your Lordships on this proposal, and on the related issues we have raised, before the Report stage, so that the Government can decide whether or not to put down an Amendment.

I must add that I understand that the present Lord Chancellor is certainly not very keen on the appointment of assessors, and I should have thought that assessors were not the way to deal with the matter. Here I am giving a personal opinion. I believe that the way of dealing with this matter, for reasons which I have given, and partly for reasons which the noble Baroness gave, is to stick to the industrial tribunals. I believe that the industrial tribunals gather a wealth of experience in dealing with all kinds of employment cases and I think that it would be advisable to stick to the industrial tribunals, but I think there should be means found to insist that more of the members that are appointed have a special knowledge of industry and employment and also of race relations, and that we should have more members who have a combination of those experiences. I submit that that is the real solution of this problem.

Lord PITT of HAMPSTEAD

May I ask the Minister whether he and the Government can think again on this? I was glad to hear his concluding sentences. My view is that, of course, it would be best if the tribunal had a member from a minority ethnic group on it, and I do not think that is as difficult as it sounds.

There are lots of lawyers who are members of minority ethnic groups. Therefore, in fact on some tribunals the chairman could be from a minority group. There are a lot of fellows from minority groups who are now shop stewards and officials in the trade union movement, and therefore the employees, the workers' representation, could be from a minority group.

Perhaps between now and Report the Government will consider not necessarily tabling an Amendment but giving a commitment that they will, in appointing tribunals, bear this fact in mind and, in effect agree that wherever possible, a tribunal hearing complaints about racial discrimination will have one member from a minority ethnic group. That would be a way to ensure that justice was done and was seen to be done.

Lord HAILSHAM of SAINT MARY-LEBONE

I was at first extremely attracted to the thesis of the noble Baroness, Lady Seear, and she knows that. I was also rather won round by part of the argument of the noble Lord, Lord Jacques. However, I think the difficulties are practically insuperable, because the effect of the Amendment as drafted would be to deprive a particular panel of jurisdiction to hear a race relations case unless one member of it complied with the provisions of the Bill, and that could lead to confusion in the handling of the day to day lists of industrial tribunals. As I said, I am both doubtful about the suitability of the ordinary industrial tribunal as at present constituted to try these cases and I am very concerned about the rather limited range of people from whom the Secretary of State selects his workers' representatives of the ordinary industrial tribunal.

But when it comes to the proposition that one gives these cases to industrial tribunals to try without constituting a new-type tribunal, as the noble Lord, Lord Brockway, wants, and then says that the ordinary industrial tribunal cannot try it and does not have the jurisdiction to try it unless one of its members has a qualification different from that which the ordinary industrial tribunal has, then it seems that the danger of falling between two stools into irreparable confusion is sufficiently serious to make me doubtful about the practicability of the Amendment. Perhaps the Minister will think again about this between now and Report, but at the moment I am rather a sceptic.

Lord JACQUES

In reply to my noble friend Lord Pitt of Hampstead, this is something about which I feel rather strongly. I think a case has been made out for the Government to make sure that, as racial discrimination will be a matter for industrial tribunals, people with special knowledge of that subject should be available, but I see the very great practical difficulties of having people with only that knowledge for only those cases. I feel that the key to this is to appoint more members, even if it means an Amendment to the Bill, who have a combination of knowledge, knowledge of employment and knowledge of race relations.

I therefore undertake to ask for a meeting with my right honourable friend at which I will put it to him as bluntly as I have put it to the Committee and fight all the way to get what I have explained. I know I will meet with some technical difficulties, but I am prepared to think of ways and means of overcoming them. I also undertake to do that as soon as possible, and I will write to the noble Baroness, Lady Seear, telling her of the outcome of that, leaving her adequate time to re-submit her Amendment on Report should that be necessary.

Baroness SEEAR

I should like to thank the noble Lord very much indeed for what he has just said. In fact, I believe there is very little between us. In putting down the Amendment, I had envisaged that what would be required was that the bodies which had the obligation to submit the names of people for industrial tribunals should be asked to find people who had the double qualification of knowing about industrial matters and of having special knowledge of race relations. I very much take the point made by the noble Lord, Lord Pitt, that there are now a very large number of people in industry who are very knowledgeable about industrial relations matters and at the same time are either themselves members of ethnic groups, have worked with conciliation committees or have experience with local community relations councils. These people have the double qualification.

I am sure that this is the right way to do it, either by the chairman or through the employee representative or, in some cases, through the employer representative. After all, our race issues are concentrated in a relatively small number of areas and I believe that, with a little trouble, we shall find people who have the double qualification.

May I just strengthen the noble Lord's hand in his argument with his right honourable friend by reminding him that there is a precedent for insisting on special knowledge in members of bodies of this kind? Under the 1919 Act setting up the industrial court, where a substantial number of women were concerned in a case which came before that court it was obligatory on the court to have a woman as a member. So there is a good precedent for seeing that there is specialist knowledge incorporated in the court where special needs exist. With the noble Lord's undertaking, I am very glad to beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord BROCKWAY

In view of the very generous pledge given by the Minister, I shall not move Amendment No. 68A.

Clause 54 agreed to.

Clauses 55 and 56 agreed to.

Clause 57 [Claims under Part III]:

1.14 a.m.

Lord MONSON moved Amendment No. 69:

Page 35, line 17, leave out subsection (4).

The noble Lord said: The purpose of the Amendment is to delete from the Bill any provision for injury to feelings. Nearly all noble Lords will have learnt in early childhood the widely-known jingle, Sticks and stones may break my bones But words will never hurt me.

This was never entirely true. Words can and do sometimes hurt, but one learns to bear with equanimity and to shrug such words off.

However, people are becoming hypersensitive—"chippy" in popular parlance —and they have unfortunately been encouraged by two recent Acts of Parliament, the Sex Discrimination Act and the Northern Ireland Fair Employment Act, which contain similar subsections to that which I am seeking to delete. In contrast, I understand that damages are no longer awarded in breach of promise actions, which I feel is a step in the right direction. I am probably sticking my neck out in addressing noble and learned Lords but, as a layman, I have always been under the impression that damages awarded under English law are—libel actions apart—extremely low by international standards. I know that the maximum damages awardable for loss of expectation of life are a mere £750. Today, your Lordships may have read about a lady, the widow of one of the sub-postmasters murdered by the so-called Black Panther, whose damages awarded by the Criminal injuries Compensation Board have been whittled down to just over £5,000. That is extremely low by the standards of most countries.

As I pointed out on several previous occasions, so long as we have in English law a situation where the parents of a child who has been killed in an accicent get not one penny of damages for their grief or sorrow on the grounds that the child did not have earning capacity, there is really no case for giving damages for something so trivial as injury to feelings. Besides, I do not think that it is our function as legislators to encourage people to become more over-sensitive and litigious than they are becoming already. For that reason, I beg to move the Amendment.

1.16 a.m.

Lord WELLS-PESTELL

I concede that the whole question of damages is a controversial one. It was a very controversial matter during the passage through Parliament of the 1968 Act. I believe that at that time the noble and learned Lord had some feelings about it. But in the light of the controversial passage of the 1968 Act through Parliament, the whole question of damages has been looked at again, and the Government feel that these particular provisions in Clause 57 must remain.

First, I should explain that when we were preparing the Sex Discrimination Bill we came to the conclusion that there was some doubt whether the county or sheriff court or an industrial tribunal would feel able, as we felt it should be able, to award damages to a person for injury to feelings, especially where no other kind of damages were awarded. It was to dispel this doubt in the case of unlawful sex discrimination that a provision in exactly the same terms as Clause 57(4) was included in the Sex Discrimination Bill. The position following the passing of that Bill on to the Statute Book is that Parliament has decided first that there was some doubt about whether damages for injury to feeling could be awarded for unlawful sex discrimination without there being an award of damages under some other head, for example, for actual loss. Parliament has decided secondly that this doubt should be dispelled by the "avoidance of doubt" provision to which I have referred.

Clearly, unless Clause 57(4) is in the Bill there will be a doubt as respects damages for injury to feeling caused by unlawful racial discrimination. In fact the doubt would be the greater if Clause 57(4) were not in the Bill because comparisons might be made with the Sex Discrimination Act. I am sure that we should not leave the law in doubt on this matter and I would therefore hope that the noble Lord will not press his Amendment.

Perhaps I should say a little more about the question of injury to feeling, in case the noble Lord would like me to do so. The point of substance in the Amendment is that people should not be able to seek damages for injury to feelings arising from unlawful discrimination. The Government take the view as a matter of principle that a person who has suffered less favourable treatment on racial grounds should be able to obtain damages for any injury to his feelings resulting from the discrimination. We also believe that he should be able to seek such damages, irrespective of whether he has suffered any other form of damage. As I have said, we thought it necessary to put this beyond doubt in the Sex Discrimination Act and we consider that it is necessary to do so in this Bill. I do not want to take up the time of the Committee, but the noble Lord will probably know that in the Annual Report of the Race Relations Board for the year 1971–72 they drew attention to the fact that there was no provision for general damages and came to the conclusion that there should be. Taking that and what we did in the Sex Discrimination Act, it has been considered advisable to put the provision in this Bill.

Lord HAILSHAM of SAINT MARYLEBONE

I can only say that I regard this as a thoroughly retrograde provision. I have had a long experience of damages one way and another, and although of course it is perfectly true that both English and Scottish law, on somewhat different principles, allow damages for feelings in certain limited ranges of cases, I have come to the conclusion that they are almost always wrong and almost always lead to undesirable social consequences. They lead to blackmailing and speculative and "gold-digging" actions by the dozen, even in the fields where they are allowed. They are quite incapable of measurement, and therefore there are no means of telling whether in one case a man will get £10 or in another case he will get £1,000 for the same sort of injury. It depends on the particular tribunal. There is no yardstick whereby one can translate feelings into money.

In fact, you will find capricious decisions of one sort and another stretching right across the country, without there being any possibility of reconciling those different decisions. I suppose it is done in order to encourage complainants to bring their actions and so deter potential respondents. This was the old doctrine under which juries were allowed to assess damages in the fields where damages for feelings were allowed. I think it is a thoroughly retrograde and retrogressive way of looking at the subject.

I do not agree with the references by the noble Lord, Lord Monson, to damages in fatal accident cases because they expressly exclude damages for feelings of all kinds. Damages for loss of expectation of life for the widow and near relatives of a deceased person are almost always swallowed up in the fatal accident damages, and where they do exist are a purely notional cause of action which should not have existed at all. It was only a series of misguided judicial decisions which led to these anomalies, but to see them deliberately introduced into an Act of Parliament in 1976 seems to me to be about as sensible as to introduce any other part of the medieval law. I see that the Sex Discrimination Act sold this pass, like all the others. I only wish we had been more vigilant in deleting it from that Bill, but I suppose the pass has been sold, so I cannot keenly enthuse on the possibility of sending it back to the other place, whose proclivities for sentimentality and folly in the field of civil law are almost unlimited.

Lord MONSON

I am in a slight quandary here. I was very pleased to have the support of the noble and learned Lord based on his great experience. It was purely my instinctive feeling that the subsection was wrong. I personally feel that the right course would be to try to get this deleted now and then to have a go at amending the Sex Discrimination Act. An awful lot of things need to be knocked out of the Sex Distrimination Act, notably Section 13(2), which is the precise equivalent of the provision we have knocked out of Clause 12 of the present Bill. I do not suppose that that is likely to happen.

I wonder if the Government would look favourably on an Amendment at the next stage to limit the amount of damages provided for injuries to feelings to £50 or something of that order. At least, it would make it slightly better than it is now. I do not suppose the noble Lord, Lord Wells-Pestell, can give a reply, but in view of the late hour, I beg leave to withdraw the Amendment now and think about it between now and Report stage.

Amendment, by leave, withdrawn.

Lord WELLS-PESTELL moved Amendment No. 70.

Page 35, line 30, at end insert— ("(6) In Scotland, when any proceedings are brought under this section, in addition to the service on the defender of a copy of the summons or initial writ initiating the action a copy thereof shall be sent as soon as practicable to the Commission in a manner to be prescribed by Act of Sederunt.")

The noble Lord said: In moving Amendment No. 70, perhaps your Lordships would allow me to speak to Amendment No. 112 which is much the same in its wording, and which would have the effect of inserting into the corresponding provision of the Sex Discrimination Act the subsection which Amendment No. 70 would add to Clause 72.

Clause 41(1)(c) imposes on the Commission for Racial Equality a duty to keep the working of the legislation under review. Section 51(1)(c) of the Sex Discrimination Act imposes a similar obligation on the Equal Opportunities Commission. To help the Equal Opportunities Commission to discharge this duty in relation to cases going to the county courts, provision has been made in the County Court Rules for it to be notified of the commencement of county court proceedings under the Sex Discrimination Act. A similar provision in the County Court Rules is envisaged in relation to county court cases under the Race Relations Bill.

It has since emerged that the arrangements I have just described for the notification of county court proceedings to the Commission cannot be made for the notification of sheriff court proceedings because the rule-making powers in Scotland appear to be narrower in this regard than they are South of the Border. If, therefore, the policy of notification is to be achieved in Scotland an express provision is necessary on the face of the legislation. Amendments Nos. 70 and 112 would incorporate the necessary provisions into the Bill and the Sex Discrimination Act. I commend them to your Lordships.

Your Lordships will notice that at the end of each of the Amendments, it says "in a manner to be prescribed by Act of Sederunt." May I say I am grateful to the noble and learned Lord for assisting me to find out what is the Act of Sederunt and, for the benefit of your Lordships, may I say that Acts of Sederunt are rules made by the Court of Session in Scotland regulating purely procedural matters. Under its founding Statute of 1532 the court has power to make such rules and it can also be enabled by legislation to make them in particular circumstances. Since the Statutory Instruments Act 1946, all Acts of Sederunt have been statutory instruments unless the enabling Act provides otherwise. They are similar to rules of court made by the Lord Chancellor in England and Wales. For example, Acts of Sederunt contain the rules of court for the Court of Session, the rules of court for the Sheriff Courts and for such matters as fees payable for registration at Registration House or in the Records Office. I beg to move.

On Question, Amendment agreed to.

Clause 57, as amended, agreed to.

Clauses 58 to 64 agreed to.

Clause 65 [Help for aggrieved persons in obtaining information etc]:

1.30 a.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 71: Page 40, line 3, leave out subsection (2).

The noble and learned Lord said: I beg to move Amendment No. 71, which relates to Clause 65. I am afraid the peaceful tenor of our way may be upset by this particular Amendment. I frankly regard Clause 65 as an abomination. I have aimed this Amendment at subsection (2). That is the abominal part of it, but subsection (1) leads up to it, and the remaining subsections lead away from it. May be—and I shall specifically ask the noble Lord, Lord Harris of Greenwich, about this—if he is against me on subsection (2) but agrees with my general judgment, it might be better if we took the Division on Clause 65 stand part, because I fancy that there would be nothing worth having for him on Clause 65 if I took out what is really its heart and core, and that is what the present Amendment does.

I said I regarded this as an abomination, and so it is. The right of one litigant to interrogate another is something which either ought to be allowed in any litigation, or in none. There can be no general justification for giving complainants in race relations cases privileges to interrogate which are of quite a different order, quite different in kind and range, to what is given to other litigants in other cases. There is nothing special to race relations cases which justifies this totally new procedure.

If you look at subsection (2), which is the heart of the matter, you will see that not only is the question to be allowed and the answer to be admissible in court, but if no answer is given then it is expressly provided that if it appears to the court or tribunal that the respondent deliberately and without reasonable excuse omitted to reply within a reasonable period, or that his reply is evasive or equivocal, the court or tribunal may draw any reference from that fact that it considers just and equitable to draw, including an inference that he committed an unlawful act.

Oddly enough, this is the very matter which was recommended in the very controversial report of the Criminal Law Revision Committee: a person, if asked a question, if he refuses to answer at all, relying on silence, should have the inference drawn against him that he was guilty. This is something which, rightly or wrongly—and I have doubts about the matter, I frankly admit—both public opinion, Parliament and successive Governments simply would not wear. What is abundantly plain is that whether they were right or wrong in not wearing it, to introduce it by a back door into the back end of a race relations Bill is simply intolerable. It is simply to do in a particular class of case what Parliament, public opinion and successive Governments have refused to do as a general rule. That, I should have thought, was enough to damn the thing. And as I want to damn it, I beg to move.

Lord HARRIS of GREENWICH

As the noble and learned Lord has described this clause as an abomination, it is conceivable that we are going to reach a disagreeable conclusion when the Division takes place. But I must say to him, though I know it is no answer to the arguments he has deployed on previous occasions, that this matter was gone over at great length during the Sex Discrimination Bill proceedings, both here and in another place. In view of the criticisms heaped by the noble and learned Lord on those who favoured the sex discrimination legislation, in terms of that Act I regard the noble Viscount, Lord Colville of Culross, as my friend. I saw him flit through the Chamber, but he must have felt the displeasure of the noble and learned Lord and is no longer with us. Therefore I cannot quote his words to your Lordships on that particular occasion. It was as a result of a number of forceful criticisms made by the noble Viscount that we made a number of Amendments on this point when discussing that earlier legislation.

There is obviously a wide gulf between the noble and learned Lord and myself on this matter, and I suspect that I shall not convince him that he is wrong and the Government are right. Nevertheless, it is right that I should deploy the case and also mention my belief that it would be better to talk about this on the Question.

Whether the clause shall stand part of the Bill? rather than in the narrower terms of the Amendment put down. I think the Committee should consider the criticisms voiced against the background to this problem, and I should now like to set this out.

I accept at once that there is common ground over the fact that this is a complicated Bill. It confers complicated rights and imposes complicated obligations. The Government make no apology for this, for discrimination is a complicated matter, as the experience of the last 10 years or so has shown. Up to now the victims of racial discrimination have been able—indeed have had no option in the matter—to take their complaints to the Race Relations Board which can investigate the complaint and attempt to conciliate and secure a settlement. Where this is not possible the Board can institute proceedings. In this Bill we are giving individuals a right of direct access to legal remedies. We must, however, do what we can to help people give substance to their rights and at the same time to avoid litigation through failure to understand how the legislation may or may not affect their case.

Some of your Lordships will recall that the Government were urged strongly on the Sex Discrimination Bill to reverse the burden of proof to help complainants. There have been similar suggestions during the preparation of this Bill, reflecting the widespread feeling that the position of the individual victim of discrimination is being weakened. The Government did not feel that this was the right approach, but the questions procedure was devised in the recognition that something needed to be done to assist the victims of discrimination. They will know that they have been treated less favourably in the circumstances in question and they will have some reason to believe that the reason for the less favourable treatment was their race. For a complaint to succeed, however, the complainant will have to show on the balance of probabilities that the respondent's reason for according him the treatment in question was his race.

Take the case of a coloured person being turned down for a promotion; there are all sorts of reasons why he might have been unsuccessful. If he thinks the decision was taken on racial grounds, how does he go about proving it? The fact is, as I have said, that it will not be easy for him to do so. The primary purpose of the questions procedure is to help him to get at the reasons for the less favourable treatment which he thinks may constitute racial discrimination.

That is the background, and that is why we have come to the conclusion that the questions procedure is right. It is designed to focus the attention of both the aggrieved person and the respondent on the issues which would be relevant in legal proceedings. It will help them establish what they agree about, and what they possibly disagree about. In some cases, the aggrieved person will be shown that he has no claim; in others, a respondent will have it brought home to him that he has acted unlawfully. Even if, at the end of the exchange, there are still issues between the two sides and legal proceedings are necessary, at least those issues will have been identified in advance.

Although I am aware that the noble and learned Lord will not be persuaded by this argument, because I think it was developed on a previous occasion, the fact is that in the exceptionally limited experience which we have had of the Sex Discrimination Act, it is clear—and I would not seek to put too much weight on this argument, the Act having been on the Statute Book for only a year or so—that this procedure has had some benefit, and, certainly, I do not think there is yet any evidence that it has imposed wholly unfair burdens on the respondents.

I could spend a great deal more time justifying the Government's position. I have sought to do so in terms of the principle of the issue, and in terms of the fact that under this piece of legislation we are now putting a greater obligation on the complainant than is the position at the moment. It is our clear view that in a situation of this kind, where we are imposing this additional burden on the complainant, the questions procedure is a right and proper scheme to introduce and I think it would be right, if the noble and learned Lord presses his Amendment, for the Committee to support us in the Lobby.

Lord HAILSHAM of SAINT MARYLEBONE

It is evident that between me and the noble Lord in this respect there is a great gulf fixed, and so I will not spend a great deal of time in replying to him. Of course, it is true that if the Bill becomes an Act it will give rights to initiate litigation of one kind or another to individuals who consider themselves aggrieved, and they have never had those rights before. It is a funny way of describing it, to call it putting an additional burden on them because they have now been given an additional right. But, still, there it is. They are now in the position of any other litigant who tries to make out a case against anybody in the High Court, the county court or the industrial tribunal. I really must tell the noble Lord that either it is right to give all plaintiffs and all complainants in all proceedings these rights, or it is not right to introduce them by hole in corner legislation, first in the Sex Discrimination Act and then in this Bill.

I am perfectly well aware—who better?—in the field of ordinary litigation of a number of quite poignant cases where, owing to the operation of the adversarial system and the burden of proof, plaintiffs with fundamentally sound cases have not been able to prove them, and I am not unconscious of that fact. For instance, I can think of cases when motor accidents had taken place, particularly in the past when the hearsay rule was more rigidly applied in civil litigation than it is now. One knew perfectly well who had run down the poor plaintiff who had received damage for life, but one could not pin it on him. I usually managed, by a process known as interrogatories—which is a well-known legal process which would be available in the county court in these cases, too—to get somewhere with it.

However, I have known poignant cases where this was not so. The same is true of employers' liability cases where injury is inflicted in the course of an accident and you simply cannot get the witnesses

to say how the accident happened. This is true in the whole range of civil litigation and there is no factor that I know of in relation to race relations, or sex, which makes it either more or less difficult than in the whole range of civil litigation. Indeed, I should have thought that on the whole it was rather easier in the field of discrimination than in the ordinary field of tort.

I am saying to the noble Lord just two things. It really is abominable, if there is a general grievance, to provide only one class of litigants with a special remedy. If, in addition to that, you provide that if the respondent refuses to answer at all you are entitled to draw the inference against him from his silence, you are doing the very thing which two Governments and both Houses of Parliament when they discussed the matter (and public opinion in general) refused to do when the Criminal Law Revision Committee recommended in favour of it. Therefore you are providing a privilege here for which there is no justification at all.

Owing to what the noble Lord said, very courteously, in reply to my invitation, I am going to divide on the Question, Whether the clause shall stand part? With that in mind, I now beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 65 shall stand part of the Bill?

Lord HAILSHAM of SAINT MARYLEBONE

I do not want to add anything to what I have said.

1.47 a.m.

On Question, Whether Clause 65 shall stand part of the Bill?

Their Lordships divided: Contents, 27; Not-Contents, 35.

CONTENTS
Avebury, L.	Grey, E.	Ritchie-Calder, L.
Beaumont of Whitley, L.	Harris of Greenwich, L.	Seear, B.
Brockway, L.	Jacques, L.	Simon, V.
Castle, L.	Kirkhill, L.	Stedman, B.
Collison, L.	Lovell-Davis, L.	Strabolgi, L. [Teller.]
Davies of Leek, L.	Murray of Gravesend, L.	Wells-Pestell, L.
Donaldson of Kingsbridge, L.	Oram, L. [Teller.]	White, B.
Elwyn-Jones, L. (L. Chancellor.)	Parry, L.	Wigoder, L.
Goronwy-Roberts, L.	Pitt of Hampstead, L.	Winterbottom, L.
NOT-CONTENTS
Ampthill, L.	Gainford, L.	Mowbray and Stourton, L. [Teller.]
Belstead, L.	Gisborough, L.
Campbell of Croy, L.	Hailsham of Saint Marylebone, L.	Newall, L.
Carr of Hadley, L.	Hatherton L.	O'Hagan, L.
Carrington, L.	Hornsby-Smith, B.	Redesdale, L.
Cathcart, E.	Kemsley, V.	Sandford, L.
Chelwood, L.	Kinnaird, L.	Sandys, L.
Denham, L. [Teller.]	Long, V.	Sempill, Ly.
Elles, B.	Lyell, L.	Shuttleworth, L.
Elliot of Harwood, B.	Monson, L.	Tweedsmuir, L.
Falmouth, V.	Morris, L.	Vickers, B.
Ferrers, E.	Mottistone, L.	Westbury, L.

Resolved in the negative and clause disagreed to accordingly.

Clause 66 [Assistance by Commission.]:

1.55 a.m.

Lord MONSON moved Amendment No. 72: Page 40, line 40, leave out ("or claimant") and insert (", claimant or respondent,")

The noble Lord said: It may be to the convenience of the Committee if I speak at the one time to Amendment No. 73, which is consequential upon Amendment No. 72. The marginal note at the beginning of Clause 66 says "Assistance by Commission." and the purpose of the Amendment is to take this at face value and extend this assistance and advice to prospective respondents, or defendants as I suppose they would be more popularly known, as well as to prospective complainants or claimants.

Let us take the case, for instance, of a shopkeeper selling sweets next door to a large comprehensive school, or any sort of school for that matter. Supposing he is plagued by a pair of small boys of a certain race; the shopkeeper can be a Pakistani and the boys could be English. Supposing the two boys habitually force their way to the front of the queue and cause a great deal of disturbance. Finally the shopkeeper says in exasperation, "Get out of my shop; I do not want you here. You are causing too much trouble", and the boys' parting shot is, "We'll have the Race Relations Board on you", or whatever it will be called. It seems a legitimate thing for a man worried by such a threat to be able to go to the Commission and say, "What are my rights? Am I allowed to do this?".

Noble Lords on the Government Benches have said time and time again during the Committee stage that the purpose of the Commission is not be one-sided, but to be impartial, not to act as a policeman, but as a helper and guide as well. There is a feeling abroad that the dice will be loaded against a defendant or a person complained of. By accepting this Amendment I think the Government will prove the opposite. I beg to move.

Lord HARRIS of GREENWICH

The Amendment proposes that the new Commission should he empowered to help respondents as well as complainants. Obviously the Amendment has an attractively even-handed appearance, but I think it misunderstands the relatively limited intention lying behind the clause. One of the prime duties of the new Commission is to counter discrimination. Discrimination is a personal injury to the individual who suffers it, and I think it is right that he should have redress. It is also a matter of public interest that discrimination should not be allowed to go unchallenged. The Government are convinced that it is right to give individual victims of discrimination direct access to the courts and industrial tribunals to seek redress for discrimination, and not, as in the 1968 Act, reserve proceedings to the statutory body. We went over this particular point on the last Amendment. But I repeat the point I made then; that is, that this procedure places an onus on the victims of discrimination. As I indicated on that occasion, the proposals of the Government have been considerably criticised on this account for, it is suggested weakening the position of complainants as a result of the introduction of this new procedure. I think it would be very regrettable if victims of discrimination were inhibited from taking up complaints because they were daunted by the burden placed on them.

It is, therefore, essential in the view of the Government that the Commission should he available to give assistance in such cases, and this is where the public interest resides. I think the position of the respondent is quite different. For all that has been said about transferring the burden of proof, the fact remains that the onus lies on the complainant to establish in cases of direct discrimination that he has suffered discrimination, and in cases of indirect discrimination that he has suffered from a requirement or condition which places the racial group to which he belongs disproportionately at a disadvantage. The respondent will benefit if the Commission is available to advise complainants on whether or not they have a case which should he pursued. It will help smooth out misunderstandings before any proceedings are instituted. But I do not believe it would further the public interest in fulfilment of the Commission's objectives of working towards elimination of discrimination for the Commission to have power to assist the respondent. In those circumstances, and in the knowledge that we are going to have another debate on this provision, I hope the noble Lord will not press this Amendment.

Lord HAILSHAM of SAINT MARYLEBONE

I shall say what I have to say about the remarkable speech we have just listened to on the Question, Whether the Clause shall stand part?

Lord MONSON

I rather infer from what the noble and learned Lord said that we may have the pleasure of doing something else about this whole clause. I am not at all happy about Lord Harris's reply. The Commission's powers are not mandatory; they are optional. If they do not think the respondent has a good case they will tell him so and do nothing about it. But there must be occasions now and again where a respondent is genuinely perplexed. It may not be his fault at all; he may be totally innocent and threatened with accusations of one sort or another. On those rare occasions it would seem perfectly legitimate to seek advice and help. We shall have to see what happens to this clause after the noble and learned Lord speaks on it. If the clause remains in the Bill, I may reintroduce these Amendments at the next stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 66 shall stand part of the Bill?

Lord HAILSHAM of SAINT MARYLEBONE

I must draw attention to the extraordinary nature of this clause and to the remarkable speech with which Lord Harris of Greenwich has now sought to defend it. There is a thing called the Legal Aid Act. It is not very generous. I have had to administer it myself. Successive Lord Chancellors have failed to raise the limits for free legal aid above the assistance level; the assisted legal aid is related to the assistance level. That applies to all cases. It is not available to the man who is unfairly dismissed and appears before the industrial tribunal. It applies to all cases of contract and all cases of tort. A man may be injured ever so badly in the street, and he is only entitled to legal aid if he can satisfy the financial provisions.

But there is one privileged class of litigant, one only in the whole range. People may be charged with murder; they may be ruined for life. But only one class of litigant is to be given legal aid without the financial provisions and that is the litigant who chooses to bring proceedings under this Race Relations Bill. Where is the justice in that? Where is the public policy? Where is the sense in it? If it is right to give aid to the person who brings these proceedings by solicitor or counsel, including representation, why is it not right for a man who is unfairly dismissed? If it is wrong to give him those rights, why is it given to this particular class of litigant? If it is right to make the person who is a quadriplegic vegetable as a result of a motor accident submit to the full rigour of the legal aid regulations, before he brings his action in the High Court, or the lesser injured man before he brings his action in the county court, why is it right to examine the complainant under this Race Relations Bill? In this piece of legislation we have taken leave of our senses, and this is only a particular example of the way in which people have gone mad when they start dealing with race relations.

Lord HARRIS of GREENWICH

I spoke to the noble Lord's Amendment, and I will speak therefore fairly briefly in response to the noble and learned Lord's speech. Clause 66 has not laid down that any person who wishes to have some form of legal aid will get it.

Lord HAILSHAM of SAINT MARYLEBONE

Nor does the Legal Aid Act.

Lord HARRIS of GREENWICH

It is a matter for the discretion of the Commission. It is for them to make the decision. The judgment would be theirs entirely. It would be for them to create the criteria by which they would decide whether or not to give this form of assistance. It might be given in a particular case because that particular case in fact raised an important issue of principle, or that it was so complex, or the complainant's position was such that it would be unreasonable to expect the individual to pursue it by himself, or by reason of some other special factor. It would he for the Commission to make a judgment of this sort.

The position is as I have set it out. This is a fairly limited power, but nevertheless it confers this authority upon the Commission. I would not in any way seek to pretend that it is other than a significant power, but I believe the Commission would treat this matter with care and caution, and they would decide what criteria they should apply to judge whether to give assistance of this sort. I think it is reasonable in all the circumstances, given the fact that we are changing the arrangements which have existed since the first Race Relations Act went on the Statute Book giving power to the Board, which now is that of the individual complainant. I think that in these particular circumstances this is not an unreasonable provision.

Lord HAILSHAM of SAINT MARYLEBONE

I am completely unconvinced. It seems to me that if the noble Lord had applied the same provisions regarding legal aid to the same conditions as other litigants I would have had very little to say. But to provide this special privileged kind of legal aid in this limited class of litigation only goes to show how crazy the Government have gone when they deal with this subject.

However, for various reasons—there are parts of the clause which I do not think are wholly bad because there are kinds of advice and assistance provided in it which are not covered by the legal aid and which might be justified—I shall not divide the Committee, but I have expressed my view that this is a wholly unjustifiable piece of special pleading. There is no difference in principle, and I can only say that legal aid is just as discretionary as the kind of privileged legal aid which is given by Clause 66.

Clause 66 agreed to.

Clause 67 [Sheriff courts and designated county courts]:

2.10 a.m.

Lord BROCKWAY moved Amendment No. 73A: Page 43, line 4, at end insert ("and at least one of whom shall be from an ethnic minority.").

The noble Lord said: This Amendment is designed to ensure that one of the two assessors to a judge or sheriff shall be from the ethnic minority. I have argued this priniple earlier and will not repeat it. The clause says that the assessors should …have special knowledge and experience of problems connected with relations between persons of different racial groups. I submit that the best way to secure the confidence of the ethnic groups would be to agree that one of the two assessors should belong to one of their races. I do not accept the view expressed by the noble and learned Lord, Lord Hailsham of Saint Marvlebone, that this principle implies discrimination. When we are seeking racial harmony between the majority community and the minority communities it is desirable that both should be represented among the assessors.

Lord HARRIS of GREENWICH

I hope that my noble friend will not press the Amendment, which I find impossible to reconcile with the principle of non-discrimination. It seems to the Government quite imperative that Parliament should apply to the machinery of enforcement of the legislation the same principle of non-discrimination upon which the legislation is founded. I appreciate very well the reasons why my noble friend put down his Amendment. The desirability of a knowledge of race relations matters being available to the judge in county court cases is recognised in the assessors provision in Clause 67. But there is a world of difference between this proposition and the idea of "representatives" of minority groups sitting as assessors, which is what my noble friend is proposing. I believe firmly that this idea, if implemented, would seriously undermine the credibility of the legislation. I hope in the circumstances that my noble friend will not press the Amendment.

Lord BROCKWAY

I am quite unconvinced but, in view of the situation and the lateness of the hour, I will not press the Amendment but ask leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 67 agreed to.

Clauses 68 and 69 agreed to.

Clause 70 [Incitement to racial hatred]:

2.14 a.m.

Lord MONSON moved Amendment No. 75: Page 45, line 9, after ("or") insert ("grossly").

The noble Lord said: In this clause we are dealing with criminal law and it therefore obliges us to be extremely careful about how wide we cast the net. The word "threaten" can be defined quite objectively and we know what it means; the word "abusive" likewise. But "insulting" means precisely what any individual wants it to mean at any given time. It is totally subjective and that is why I propose that the word "grossly" should qualify the word "insulting" in the paragraph in question and in the succeeding paragraph. In this connection, it may he for the convenience of the Committee if I speak also to Amendment No. 77.

I feel that the point must be self-evident, but let me give a couple of examples. Fans of the Pooter family in Holloway will remember how deeply offended Mr. Cumming and Mr. Gowing were when Mr. Pooter in an uncharacteristic attempt at humour made a pun on their names. On a more contemporary note, take the case of a man of average height who is none the less a good deal shorter than his two brothers and who is very conscious of the fact. He goes into a man's outfitters to buy a pair of trousers only to be told by the assistant, "Ah, now, Sir, you'll want the short fitting, won't you?" How insulted he would feel! "Insulting" is a purely personal and subjective concept, and I feel that to leave the word without qualification in these two paragraphs would endanger our liberties as much as would any part of the Bill. I therefore beg to move.

Lord HARRIS of GREENWICH

I recognise that the noble Lord, Lord Monson, is seeking with the Amendment to strengthen the safeguard against undue interference with free speech. As the clause stands, an offence is committed if it is shown not only that language has been used that is likely to stir up racial hatred but also that the language itself is threatening, abusive or insulting. It must be shown that the language itself is objectionable. Of the three tests—that is, "threatening", "abusive" or "insulting"—it can certainly be argued that "insulting" is the weakest. It is clearly a serious matter to use language which is threatening or abusive and is likely to stir up racial hatred. Such behaviour, given the serious consequences which stirring up a result so grievous as racial hatred would bring about, surely merits the sanction of the criminal law.

I accept that it is, in itself, less serious for language to be insulting, but much racialist matter is certainly insulting. Rude language is insulting. That is not, in itself, grounds for invoking the criminal law, but it must be remembered that the test is not just whether the language is insulting. The test of the likelihood of stirring up racial hatred is severe: I believe that this combination provides the safeguard which the noble Lord is seeking in his Amendment. Indeed, I doubt whether the addition of the word "grossly" would strengthen the test to any significant degree, or indeed at all. I doubt whether language which was merely insulting and which would not be held to be grossly insulting would be held to be likely to give rise to racial hatred and I therefore do not believe that the noble Lord's Amendment will assist him in his objective.

Lord BEAUMONT of WHITLEY

The noble Lord has not produced any argument against the Amendment: he has produced an argument to say that it is unnecessary. That may or may not be so and I think it quite a good argument but, since there appears to be no argument against the Amendment as such, why should we not put it in in case it is necessary and should be included? If the Minister cannot produce an argument against putting in the word "grossly", as opposed to saying that it is unnecessary, let us have it in.

Lord HAILSHAM of SAINT MARYLEBONE

I can only say that I will produce such an argument. It used to be said by judges that gross negligence, as distinct from negligence, was only negligence with a vituperative adjective attached, and I think the same is true of the word, "insulting".

Lord MONSON

I am very grateful for the support of the noble Lord, Lord Beaumont of Whitley. I cannot see any reason for not including the word "grossly". It defines the matter a little more narrowly. I ask your Lordships to remember that the insult does not have to be directed against any racial group whatsoever in this country. There is nothing in the clause to say so. For instance it can be directed against a politician, saying that the man is an absolute idiot to give an amnesty to illegal immigrants. This would be undoubtedly insulting and indirectly could stir up latent feeling against such people.

Written matter is defined later in the Bill as including cartoons, pictures, and so forth. So it might include comic books, paperbacks and such—any depiction which was deemed to he insulting. During Second Reading I cited the case of the Kenyan newspaper which described General Amin as a tyrannical buffoon. Indirectly this could be held to stir up feeling against somebody or other.

I think it is extremely dangerous to leave the word "insulting" unqualified; I would prefer that it came out altogether. I thought that it would be more acceptable to the Government to qualify it by a word such as "grossly", which was the best word I could think of at the time. If I had one other noble Lord to support me I would be sorely tempted to press this Amendment, but given the hour and bearing in mind what the noble Lord has said I will, for the moment, withdraw and think about the matter again before the next stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

2.23 a.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 78: Page 45, line 13, leave out from beginning to ("be") in line 14 and insert ("with the intention that hatred shall").

The noble and learned Lord said: Here again we are in the presence of an important issue of principle. Wittingly or unwittingly the Government have by this clause subverted the whole doctrine of English law. I am not concerned now with purely summary offences. This is not purely a summary offence; it gives rise on indictment to conviction, to imprisonment for a term not exceeding two years—I am reading from subsection (5)—or to an unlimited fine, or both. In other words, it is comparable to some of the old serious offences of dishonesty, and therefore is comparable to any offence under English law.

To my mind, it is a fundamental principle of English law and one which is absolutely vital for the preservation of individual liberty, that a crime should consist of two separate elements: first, there is the prohibited act, quaintly and rather illiterately referred to by lawyers as the actus reas, and there should also be a state of mind, which is also criminal, quaintly and not so illiterately referred to by lawyers as the mens rea. In the great majority of cases, though not always, the guilty state of mind is an intention. Quite deliberately the Government have created in this new clause an indictable offence in which the mental element is removed altogether, because a person who distributes written matter which is threatening, abusive or insulting…in a case where having regard to all the circumstances, hatred is likely to be stirred up against any racial group in Great Britain by the matter or words in question", is guilty of that offence. There is no reference to intention. The purpose of the Amendment standing in my name is to substitute for the likelihood of it happening the intention that it should happen; in other words, that the offence should remain but should be made conformable to the ordinary principles of English criminal law—and I see no reason why that should not he applied.

I notice that all kinds of undesirable and unexpected consequences can be expected to happen if this principle is not applied. I do not know whether noble Lords saw the letter in The Times from the President of the Guild of British Newspaper Editors, which appeared on the 27th September. He said: It is to be hoped that the House of Lords will approve an amendment to the Race Relations Bill due to be moved by Lord Hailsham when the Bill comes before their lordships this week. Clause 70 of the Bill, dealing with incitement to racial hatred, inserts a new section to the Public Order Act 1936 which, as it stands, would place newspapers and their editors in an intolerable position. He goes on to point out: The implications of this section and in particular of the last paragraph ", which he quoted, are so serious and uncertain in their effect on newspapers that one can only conclude that MPs had not considered them in any depth during the Bill's passage through the Commons. The phrase 'hatred is likely to be stirred up' would make it almost impossible for an editor to decide whether or not he would be risking prosecution, despite the fact that he might well be dealing with a matter of important public interest. The effect would undoubtedly be to gravely restrict "— he might have not split his infinitive there— information of events, of speeches, and of statements about which the public have every right to know, and which it is an editor's duty to publish. Lord Hailsham's amendment would oblige the prosecution to prove intent, by substituting "— and then he goes on to deal with the Amendment, and says it would be a vast improvement. He continues: Those responsible for this Bill should remember that a meeting, perhaps attended or witnessed by several hundred people, is an event of public knowledge and public importance, and that no newspaper should be inhibited from publishing a report of it. The same considerations apply equally to written material such as party manifestos or candidates' leaflets. I notice, of course, that in subsection (2) there are various excepting clauses, but they do not affect the general argument of the letter.

Now, that is all right; that is one unpredicted result. Take a speech by a public figure—rather a topical subject tonight, I think. I do not know what speeches may or may not contain, but I can quite believe that a public figure of distinction might wish to make remarks which other people might consider insulting, or even grossly insulting. One noticed that the noble Lord, Lord Pitt, when we were dealing with advertisements, was insulted by a particular phraseology which many of us would not have thought particularly insulting. I do not approve of that sort of conduct—I do not want that to be thought—but it is to be said that such a man would become guilty of an indictable offence even though he had no intent, and the prosecution were quite unable to prove any intent, to cause racial violence or racial hatred. One wonders whether that is not a serious breach, not only of the English criminal law but of the way in which we approach public problems in this country.

The history of sedition as a crime has much the same sort of nuances as that which the noble Lord has now introduced into this Bill. One remembers the series of prosecutions by Mr. Scott at the end of the 18th century before he became Lord Eldon and Lord Chancellor, how it ruined the standing and reputation of the then Administration and brought great discredit upon the whole crime of sedition for this very reason. The series of libel prosecutions for criminal libel has similar history. Indeed, Lord Erskine made his reputation as an advocate at the English Bar by ridiculing and destroying some of those prosecutions. Returning, not to 1984 but to 1784 in this clause and to Mr. Scott, the then Attorney-General, I do not think that that is sensible at all.

I am not in the least mollified in my condemnation of this extraordinary piece of legislation by the fact that no prosecution can be brought except by or with the consent of the Attorney-General under subsection (5). I do not like these special clauses in any criminal provisions; nor, do believe, have successive Attorney-Generals and Directors of Public Prosecutions relished the task thrust upon them in some Acts of Parliament. But a thing so politically sensitive as the decision to prosecute or not prosecute, let us say, a Privy Councillor who makes a controversial speech about race, is something with which no Attorney-General ought to be faced. Either the law should be applicable at the instance of the person who believes himself to be insulted or it should not be applicable at all. No, let us stick to the well-proven principles of English law and let us not lose our heads because of the National Front or Mr. Powell. I beg to move.

Lord HARRIS of GREENWICH

This Amendment crystallises the problems facing the Government in seeking to provide an effective sanction against racial incitement. Strong views are held on the place of the criminal law in dealing with racialist language. They range from those who believe that free speech on this issue should not be limited at all, or hardly at all, to those who believe that racialist propaganda is so evil and disruptive to society that extensive sanctions are essential to counter it.

Section 6 of the 1965 Act envisages three tests before an offence arises: first, the language in question must be threatening, abusive or insulting; secondly, it must be likely to stir up hatred against a particular racial group; and, thirdly, the person using the language must intend to stir up racial hatred. All three tests must be fulfilled. The strictness of these three tests has prevented the extensive use of Section 6. It has not proved an effective sanction.

Those who doubt the value of criminal sanctions in this field no doubt welcome the fact that the three requirements place great limitations on the number of prosecutions which can be mounted with any reasonable degree of success. The Government respect the views of those who think that the criminal law has limited application in this field. I think that is right. But there can be no doubt about the damage which abusive racialist language can do to race relations and harmony and the whole cohesion of our society. Our reluctance to interfere with the individual's right to speak his mind, however obnoxious his views, must be weighed against this damage. The Amendment would in effect restore the position to what it is under the 1965 Act. Sir Leslie Scarman made it clear in his report on the Red Lion Square disturbances that he did not regard the present provision as satisfactory. If the Committee accepted the Amendment it would have to face the fact that the law against racialist propaganda would remain in its present ineffective state.

I will remind the Committee of Sir Leslie Scarman's words in the report of the Red Lion Square disorders which took place on 15th June 1974. Paragraph 182 says: However, the Statute law calls for scrutiny. Section 6 of the Race Relations Act 1965 needs radical amendment to make it an effective sanction, particularly, I think, in relation to its formulation of the intent to be proved before an offence can be established. That is precisely what we are doing in this Bill. It is that which the noble and learned Lord dislikes in what we are attempting to do in this Bill.

What the Bill proposes is that the requirement that the speaker's (or writer's) subjective intention to stir up racial hatred must be proved should be removed, so that the test would he only whether the threatening, abusive or insulting words in question were likely to stir up hatred. What Clause 70 involves is placing a responsibility on people who speak in public, or publish written matter, to take account of the likely effect of what they say. This is analogous to Section 5 of the Public Order Act 1936 under which a person who does threatening, abusive or insulting things in public commits an offence if a breach of the peace is thereby liable to be caused—whether or not this is proved to be his intentions. Racial hatred is a serious matter. The language used for an offence to arise has to be threatening, abusive or insulting. This is, it seems to the Government, a tight test which justifies placing the responsibility on someone using such language to take into account the likely effect of his words.

2.37 a.m.

Lord HAILSHAM of SAINT MARYLEBONE

This just goes to show the Rake's Progress that we get into when we disregard the fundamental principles of law. First, may I dispose of the two special arguments with which the noble Lord sought to justify what he is doing. Sir Leslie Scarman said that the Amendment should be in relation to the formulation of the intent. So what does the noble Lord do? He abolishes the necessity for intent altogether. He does not re-formulate it. Then he says that Sir Leslie Scarman is a witness in his favour. The noble Lord refers to Section 5 of the Public Order Act 1936. But that I had very clearly in mind when I said that I was not talking about summary offences, and Section 5 of the Public Order Act 1936 is a summary offence. This is an indictable offence punishable by two years' imprisonment. That is why I say that the full rigour of the English law should be applied.

But look at the Rake's Progress which we have. None of us likes race hatred, so we create an offence under Section 6 of the Race Relations Act 1965. We obey the ordinary rules of English law. We say that there should be a prohibited act and intent. But it is rather difficult to prove, is it not? So we will make it easier to prove. We will take away the essential intent and say that it does not matter whether you are innocent or guilty in mind, you can be sent to prison for two years although you are entirely innocent if what you do is sufficiently foolish and the effect of what you do is

Resolved in the affirmative, and Amendment agreed to accordingly.

2.48 a.m.

Lord MONSON moved Amendment No. 79: Page 45, line 20, leave out ("a fair and accurate") and insert ("a reasonably fair or factual").

The noble Lord said: It may be to the convenience of the Committee if I speak at the same time to Amendment No. 80. Subsection (2) of Clause 70 is, to my mind, extremely ominous. Like the noble and learned Lord, Lord Hailsham, who was speaking to subsection (1), I have visions of 1984. What on earth is the point of putting a noose around Parliamentary and court reporters in this way? What special matter are they supposed to write which requires a subsection of their own to deal with them? I can only guess. However, likely to stir up racial hatred. So the safeguards of English law built up slowly over the centuries are one by one slowly eroded for the best of reasons and the noblest of intentions. The primrose path is taken towards 1984, after the model of 1784. We shall divide.

2.40 a.m.

On Question, Whether the said Amendment (No. 78) shall be agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 20.

CONTENTS
Barrington, V.	Ferrers, E.	Mowbray and Stourton, L. [Teller.]
Beaumont of Whitley, L.	Gainford, L.
Belstead, L.	Gisborough, L.	Newall, L.
Campbell of Croy, L.	Hailsham of Saint Marylebone, L.	O'Hagan, L.
Carr of Hadley, L.	Hatherton, L.	Redesdale, L.
Carrington, L.	Hornsby-Smith, B.	Sandford, L.
Cathcart, E.	Kemsley, V.	Sandys, L.
Chelwood, L.	Kinnaird, L.	Sempill, Ly.
Denham, L. [Teller.]	Long, V.	Shuttleworth, L.
Elles, B.	Lyell, L.	Simon, V.
Elliot of Harwood, B.	Monson, L.	Tweedsmuir, L.
Falmouth, V.	Morris, L.	Vickers, B.
	Mottistone, L.	Westbury, L.

NOT-CONTENTS
Castle, L.	Jacques, L.	Ritchie-Calder, L.
Collison, L.	Kirkhill, L.	Stedman, B.
Davies of Leek, L.	Lovell-Davis, L.	Strabolgi, L.
Donaldson of Kingsbridge, L.	Murray of Gravesend, L.	Wells-Pestell, L.
Elwyn-Jones, L. (L. Chancellor.)	Oram, L. [Teller.]	White, B.
Goronwy-Roberts, L.	Parry, L.	Winterbottom, L. [Teller.]
Harris of Greenwich, L.	Pitt of Hampstead, L.

the purpose of my Amendments is to substitute the rather more lax words "a reasonably fair or factual" for the words "a fair and accurate.".

The word "accurate" is a word that permits no shades of grey. I nipped out a moment ago to check it again in the Concise Oxford Dictionary but I am afraid that, owing to the lateness of the Sitting, I have forgotten the exact meaning, but I think it is "an absolute representation of the truth", or something of that kind. It means that if in any article of 1,000 words one word is wrong, then that article is inaccurate. "Factual" seems to me to be a far better word to describe a simple, straightforward report of the proceedings in Parliament, and the odd mistake here and there would not make it a nonfactual one.

One has also to allow for the Parliamentary sketches initiated in recent years by Mr. Bernard Levin in the Spectator and now represented most notably in the Daily Telegraph and the Daily Mail. These sketches are not purely factual; they mix up fact with comment, occasionally slapstick and one thing and another and they are always very entertaining to read. These must he catered for, too.

Again the word "fair" if unqualified is just as subjective a word as "insulting". One can easily visualise somebody saying, "This is not fair. He's described me as a person who bangs on for hours and hours and I'm going to report this. It really isn't good enough". That is why I suggest "reasonably fair" to cope with the Parliamentary sketches and "factual" to cover the straight reporting. I beg to move.

Lord HARRIS of GREENWICH

Subsection (2) of the new section which Clause 70 inserts into the Public Order Act 1936 gives absolute protection to the publication and distribution of reports of court and Parliamentary proceedings, but as the subsection stands such reports are protected only if they are both fair and accurate. The Amendment would give immunity to reports which are reasonably fair or factual.

I think that the noble Lord's Amendment goes rather too far. As subsection (2) stands, a report must be both accurate in what it includes and fair in the overall impression it conveys. A report which, through selective omission, was misleading would not come within the protection; but if the noble Lord's Amendment were made, a selective report which was accurate so far as it went would be protected, as would a report which was not quite accurate so long as it was reasonably fair.

I think that this Amendment goes too far. Here we are dealing with highly objectionable language likely to stir up racial hatred—likely, that is, to have the most serious potential consequences. It is right that the reporting of such language should be protected only on the strictest test, and this test is well precedented in legislation. The noble and learned Lord will be glad to know that I am not about to cite the Sex Discrimination Act. The words "fair and accurate" are those used in giving protection from libel action to judicial and Parliamentary reports by Section 3 of the Law of Libel Amendment Act 1888 and they are repeated in Schedule I to the Defamation Act 1952.

I hope that on the basis of what I have said the noble Lord will withdraw his Amendment. I think that it goes rather too far and, as I have indicated, the Government's choice of words is well precedentee in legislation.

Lord MONSON

The noble Lord, Lord Harris of Greenwich, said that my Amendment goes rather too far, by which I infer that an Amendment which varied slightly from the one I have just moved might be acceptable. Would not the noble Lord agree that the word "accurate" is as I have described: that is to say, if one word is inaccurate in a report containing a thousand words it makes the report inaccurate?

Lord HARRIS of GREENWICH

I am saying to the noble Lord that the Government's choice of words is well precedented and that so far as I am aware—I speak not just in my capacity as a member of the Government but as a person who spent most of his working life as a journalist—there was no significant problem that I can recall during my own journalistic career. I do not believe that in this respect there are grave difficulties so far as the Press are concerned. I believe that the Government's choice of language is reasonable and at the moment I cannot see any alternative form of words which would be any more attractive or do the job that we are attempting to have done here.

Lord MONSON

Supposing there were a report of a debate in Parliament on immigration and six honourable Members who opposed immigration and two who were in favour of it were reported; that might be reported accurately but might be considered to be unfair. Would that not possibly be caught by the subsection as it stands?

Lord HARRIS of GREENWICH

No.

Lord MONSON

I am still not entirely happy, but in view of the lateness of the hour I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 70, as amended, agreed to.

Clause 71 [Local authorities: general statutory duty]:

2.56 a.m.

Lord AVEBURY

It is unfortunate that at such a late hour we should embark on an Amendment of such importance as Amendment 82D and I wonder whether I might appeal to the Government Front Bench to consider whether it might not be for the convenience of the Committee if we were to adjourn at this point, having just got to the end of Part IX of the Bill, so that we might embark on the discussion of such an important Amendment at a more reasonable hour of the day.

Lord HARRIS of GREENWICH

I am certainly prepared to move that Motion. It is always a temptation to continue sitting late at night for the pure pleasure of seeing the noble and learned Lord. That is sufficient compensation for anybody sitting on this side of the Committee; but we have been making quite considerable progress, and I think, as the noble Lord has fairly pointed out that this is a fairly substantial Amendment, it would be reasonable to end our debate on this Bill for the moment, if that is satisfactory to the noble and learned Lord.

Lord HAILSHAM of SAINT MARYLEBONE

Yes, I do not want to prolong these proceedings. I should like the noble Lord to believe that we on this side of the Committee have done our best to expedite the proceedings so far as was possible consistently with debate.

Lord HARRIS of GREENWICH

In that case I beg to move that the House do now resume.

Moved accordingly and, on Question, Motion agreed to.

House resumed.